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. 05-40698 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMON RODRIGUEZ-RUIZ, also known as Jose Ramon Rodriguez-Ruiz,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-905 --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges

PER CURIAM:*

Ramon Rodriguez-Ruiz (Rodriguez) appeals his conviction and

sentence following his plea of guilty to illegal reentry after

deportation. Rodriguez was sentenced to 46 months of

imprisonment and three years of supervised release. Rodriguez

asserts 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.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40698 -2-

Riascos-Cuenu,

(5th Cir. 2005), petition

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

dismiss this portion of the appeal for lack of jurisdiction.

Rodriguez also asserts that the “felony” and “aggravated

felony” provisions of

(b) are unconstitutional.

Rodriguez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Rodriguez 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). Rodriguez 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.