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. 05-40854 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ALBERTO AGUILAR-CRISTALES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-25-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Carlos Alberto Aguilar-Cristales (Aguilar) pleaded guilty to

being found illegally in the United States after deportation.

Aguilar was sentenced to a 57-month term of imprisonment and to a

two-year period of supervised release. Aguilar has appealed his

conviction and sentence.

Aguilar contends that the imposition of a requirement that

Aguilar cooperate in the collection of a DNA sample violates his

rights under the Fourth Amendment. Because this issue is not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40854 -2-

ripe for review, this court does not have jurisdiction and this

portion of the appeal must be dismissed. See United States v.

Riascos-Cuenu,

, 1101–02 (5th Cir. 2005), petition

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

Aguilar challenges the constitutionality of

(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be proved beyond a reasonable doubt in light of

Apprendi v. New Jersey,

(2000). This argument is

foreclosed by Almendarez-Torres v. United States,

(1998). Although Aguilar contends that Almendarez-Torres has

been “impliedly overruled” by subsequent Supreme Court decisions,

including Apprendi, “[t]his court has repeatedly rejected

arguments like the one made by [Aguilar] and has held that

Almendarez-Torres remains binding despite Apprendi.” United

States v. Garza-Lopez,

(5th Cir.), cert.

denied,

(2005). Aguilar concedes that the issue

is foreclosed. He has raised the issue to preserve it for

further review.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.