United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT3 February 23, 2006

Charles R. Fulbruge III No. 05-40463 Clerk Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO ROMERO-MONTIEL, also known as Roberto Romero,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1726-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Roberto Romero-Montiel appeals his conviction and sentence

under

for attempting to illegally re-enter the

United States after having been deported. Romero-Montiel argues

that the district court erred in ordering, as a condition of

supervised release, that he cooperate with the probation officer

in the collection of DNA. His claim is not ripe for judicial

review in light of our holding in United States v. Riascos-Cuenu,

(5th Cir. 2005), petition for cert. filed

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40463 -2-

(Jan. 9, 2006) (No. 05-8662). Accordingly, we dismiss this

portion of the appeal for lack of jurisdiction.

Romero-Montiel also argues that the “felony” and “aggravated

felony” provisions of

(b) are unconstitutional.

His challenge is foreclosed by Almendarez-Torres v. United

States,

(1998). Although Romero-Montiel

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). Romero-Montiel 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.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.