* Pursuant to 5 TH C IR . R. 47.5, the court has determ ined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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, Plaint iffAppellee,
versus JOSE EFRAIN AYALA, DefendantAppellant.

-------------------------------------------------------------- Appeal from the United States District Court fo r the Southern District of Texas USDC No. 5:04-CR-1778

-------------------------------------------------------------- Before BARKSDALE, STEWART and CLEMENT, Circuit Judges. PER CURIAM: * Having pleaded guilt y to illegal reentry fo llo wing deportation in vio lat io n of 8 U.S.C. § 1326, Jose Ef rain Ayala argues th at his sentence vio lat es United States v. Booker** because the district court applied the Unit ed States Sentencing Guideline s 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 th at district court abused it s discretion by requiring th at Ayala cooperate wit h the probation of ficer in the collection of DNA as a condition of supervised release. The Government concedes th at Ayala preserved his challenge to the application of mandatory sentencing guidelines by objecting th at the sentencing proceeding vio lat ed Blakely v. Washington. **** As the sentencing transcript is devoid of evidence th at the district court would have impo sed the same sentence under an advisory regime, the Government has not borne it s burden of establishing th at the district court’s error was harmless. See United States v. Walters , 418 F.3d 461, 464 (5th Cir. 2005).
Ayala’s argument th at the “felo ny” and “aggravated felo ny” provisions of 8 U.S.C. § 1326(b)
are unconstitutional is fo reclosed by Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998)
. Alt hough Ayala contends th at Almendarez-Torres was inco rrectl y decided and th at a majo rity 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. GarzaLopez , 410 F.3d 268, 276 (5th Cir.), cert. denied , 126 S. Ct. 298 (2005). Ayala properl y co ncedes th at 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 his supervised release requiring th at he cooperate wit h the probation of

ficer in t he collection of a DNA sample is not ripe for review on direct appeal. U nited States v. Carmichael , 343 F.3d 756, 761-62 (5th Cir. 2003), cert. denied , 540 U.S. 1136 (2004); see-3-

United States v. Riascos-Cuenu , 428 F.3d 1100 , 1101-02 (5th Cir. 2005), p etition for cert. filed , (U.S. Jan. 9, 200 6)(No. 8662). Accordingly, we dismiss this argument for lack of appellate jurisdiction. AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR RESENTENCING; DISMISSED IN PART FOR LACK OF JURISDICTION.