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. 05-40479
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE MARTINEZ-GASCA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1796-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jorge Martinez-Gasca pleaded guilty to illegal reentry after
deportation and was sentenced to 45 months of imprisonment and
three years of supervised release. Martinez-Gasca argues 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
review. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-
*
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this opinion should not be published and is not precedent except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. 05-40479
-2-
02 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No.
05-8662).
Martinez-Gasca’s constitutional challenge to the
“felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b) is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Martinez-Gasca 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, 530 U.S. 466 (2000), 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, 126 S. Ct. 298 (2005). Martinez-
Gasca 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.