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. 05-40701 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER ALCAZAR-OLIVAREZ, also known as Pedro Gonzalez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-1025-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Javier Alcazar-Olivarez (Alcazar) pleaded guilty to illegal

reentry after deportation and was sentenced to 18 months of

imprisonment and a two-year term of supervised release.

Alcazar argues for the first time on appeal that the

district court erred in ordering him to cooperate in the

collection of a DNA sample as a condition of supervised release

and that this condition should therefore be vacated. This claim

is dismissed for lack of jurisdiction because it is not ripe for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40701 -2-

review. See United States v. Riascos-Cuenu,

(5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-

8662).

Also for the first time on appeal, Alcazar challenges the

constitutionality of

(b). His constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

(1998). Although Alcazar 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). Alcazar

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.