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. 05-40805 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAUL HERNANDEZ-AGUIRRE, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-934-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Saul Hernandez-Aguirre appeals his sentence for being an

alien unlawfully found in the United States following deportation

after having been convicted of an aggravated felony, in violation

of

(a) and (b). On appeal, he challenges the

constitutionality of § 1326(b)’s treatment of prior felony and

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury in light of

Apprendi v. New Jersey,

(2000). Hernandez-Aguirre’s

constitutional challenge is foreclosed by Almendarez-Torres 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40805 -2-

United States,

(1998). Although Hernandez-

Aguirre contends that Almendarez-Torres was incorrectly decided

and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, 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).

Hernandez-Aguirre 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.

Hernandez-Aguirre next raises a Fourth Amendment challenge

to the collection of a DNA sample as a condition of his

supervised release. As he concedes, such a claim is not ripe for

review, and we lack jurisdiction to consider it. United States

v. Riascos-Cuenu,

(5th Cir. 2005),

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

Accordingly, that portion of the appeal must be dismissed.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.