* 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.

** 543 U.S. 220 (2005).

United States Court of Appeals

Fifth Circuit

FILED

April 5, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40183 

Summary Calendar

UNITED STATES OF AMERICA,

PlaintiffAppellee,

versus

JOSE EFRAIN AYALA,

DefendantAppellant.

--------------------------------------------------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-1778

--------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

Having pleaded guilty to illegalreentry following deportation in violation of 8 U.S.C. § 1326,

Jose EfrainAyala arguesthat hissentence violates United States v. Booker** because the district court

applied the United States Sentencing Guidelines as mandatory rather than discretionary; that his
*** 530 U.S. 466 (2000).

  542 U.S. 296 (2004).

-2-

sentence under 8 U.S.C. § 1326(b) is unconstitutional in light of Apprendi v. New Jersey** *; and that

district court abused its discretion by requiring that Ayala cooperate with the probation officer in the

collection of DNA as a condition of supervised release. 

The Government concedesthat Ayala preserved his challenge to the application ofmandatory

sentencing guidelines byobjecting that the sentencing proceeding violated Blakely v. Washington.****

Asthe sentencing transcript is devoid of evidence that the district court would have imposed the same

sentence under an advisory regime, the Government has not borne its burden of establishing that the

district court’s error was harmless. See United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).

Ayala’s argument that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)

are unconstitutional isforeclosed byAlmendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Ayala contendsthat Almendarez-Torres wasincorrectly decided and that a majority of the

Supreme Court would overrule Almendarez-Torresin light ofApprendi, we have repeatedly rejected

such arguments on the basis that Almendarez-Torres remains binding. See United States v. GarzaLopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Ayala 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.

Ayala’s challenge to a condition of hissupervised release requiring that he cooperate with the

probation officer in the collection of a DNA sample is not ripe for review on direct appeal. United

States v. Carmichael, 343 F.3d 756, 761-62 (5thCir. 2003), cert. denied, 540 U.S. 1136 (2004);see
-3-

United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed,

(U.S. Jan. 9, 2006)(No. 8662). Accordingly, we dismiss this argument for lack of appellate

jurisdiction.

AFFIRMEDINPART;VACATEDINPART ANDREMANDEDFORRESENTENCING;

DISMISSED IN PART FOR LACK OF JURISDICTION.