United States v. Felix-Terrazas , 169 F. App'x 244 ( 2006 )

PER CURIAM: ^*

Rosario Felix-Terrazas (Felix) appeals his conviction and sentence for illegal reentry. He raises a constitutional challenge to 8 U.S.C. § 1326(b)(1) and (2) and also argues that the district court plainly erred in requiring him to submit to DNA testing as a condition of his supervised release. Felix’s appeal waiver is unenforceable because the magistrate judge advised him at his rearraignment hearing that he could appeal an illegal sentence. See, e.g., United States v. Robinson, 187 F.3d 516, 517-18 (5th Cir.1999). We need not decide the applicability of the sentencing waiver in the plea agreement because the appellate issues are foreclosed.

Felix’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 Felix 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Felix 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.

Felix’s supervised release claim is not ripe for review and is therefore dismissed for lack of jurisdiction. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1101 (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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.