UNITED STATES of America, Plaintiff-Appellee, v. Alfredo GARCIA-ARIOLA, Defendant-Appellant, 168 F. App'x 619

PER CURIAM: Alfredo Gareia-Ariola appeals his sentence for illegal reentry into the United States after deportation following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(

a) and (b). Gareia-Ariola challenges, for the first time on appeal, 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, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Garcia-Ariola’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Although Defendant 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, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Garcia-Ariola 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. Garcia-Ariola’s sentence is affirmed.

Garcia-Ariola also argues, for the first time on appeal, that the district court erred by ordering him to cooperate in the collection of a DNA sample as a condition of his supervised release and that this condition should therefore be vacated. This claim is dismissed for lack of jurisdiction because it is not ripe for review. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir.2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662). JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART. 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.