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. 05-40867 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO LUIS CHIRINOS-TORRES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-786-1 --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Mario Luis Chirinos-Torres (Chirinos) was convicted by a

jury of being found unlawfully in the United States after

deportation and was sentenced to 63 months of imprisonment and

three years of supervised release. As a condition of supervised

release, Chirinos was ordered to cooperate in the collection of a

DNA sample as directed by his probation officer.

Chirinos argues that the district court erred in ordering

him to cooperate in the collection of a DNA sample as a condition

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40867 -2-

of supervised release. This claim is dismissed for lack of

jurisdiction because it is not ripe for review. See United

States v. Riascos-Cuenu,

(5th Cir. 2005),

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

Chirinos’s constitutional challenge to

(b) is

foreclosed by Almendarez-Torres v. United States,

(1998). Although Chirinos 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). Chirinos 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.