United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 05-40137 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROSARIO FELIX-TERRAZAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-776-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Rosario Felix-Terrazas (Felix) appeals his conviction and

sentence for illegal reentry. He raises a constitutional

challenge to

(b)(1) and (2) and also argues that

the district court plainly erred in requiring him to submit to

DNA testing as a condition of his supervised release. Felix’s

appeal waiver is unenforceable because the magistrate judge

advised him at his rearraignment hearing that he could appeal an

illegal sentence. See, e.g., United States v. Robinson, 187 F.3d

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 05-40137 -2-

516, 517-18 (5th Cir. 1999). We need not decide the

applicability of the sentencing waiver in the plea agreement

because the appellate issues are foreclosed.

Felix’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Felix contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi v. New Jersey,

(2000), we have repeatedly rejected such arguments on the

basis that Almendarez-Torres remains binding. See United States

v. Garza-Lopez,

(5th Cir.), cert. denied,

(2005). Felix properly concedes that his argument is

foreclosed in light of Almendarez-Torres and circuit precedent,

but he raises it here to preserve it for further review.

Felix’s supervised release claim is not ripe for review and

is therefore dismissed for lack of jurisdiction. See United

States v. Riascos-Cuenu,

(5th Cir. 2005),

petition for cert. filed (Jan. 9, 2006) (No. 05-8662).

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.