United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-20206
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOURDES ALFARO, also known as Lourdes J. Alfaro,
also known as Wendy Borjas,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-447-1
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Lourdes Alfaro appeals her conviction for unlawful reentry
under 8 U.S.C. § 1326 and the district court’s imposition of a
supervised release condition requiring her to cooperate with DNA
collection. Alfaro first argues that § 1326(b)’s treatment of
prior felony and aggravated felony convictions as sentencing
factors rather than as elements of the offense that must be found
by a jury is unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). This argument is foreclosed by Almendarez-
*
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this opinion should not be published and is not precedent except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. 05-20206
-2-
Torres v. United States, 523 U.S. 224, 235 (1998). Although
Alfaro 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, 126 S. Ct. 298 (2005). Alfaro
properly concedes that her argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but she raises it here
to preserve it for further review.
Alfaro next asserts that the district court erred by
ordering her to cooperate in the collection of a DNA sample while
on supervised release. This claim is not ripe for review on
direct appeal. See United States v. Riascos-Cuenu, 428 F.3d
1100, 1102 (5th Cir. 2005), petition for cert. filed (Jan. 9,
2006) (No. 05-8662). The claim is dismissed. See id. at 1102.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.