                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 2, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-11144
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAVIER NATIVIDAD-HERNANDEZ, also known as Noe
Hernandez-Lopez, also known as Robert Anthony Escobedo,
also known as Joe Hernandez-Lopez,

                                    Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                       USDC No. 1:06-CR-39-ALL
                         --------------------

Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Javier Natividad-

Hernandez raises arguments that are foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998), which held

that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a

separate criminal offense.   The Government’s motion for summary

affirmance is GRANTED, and the judgment of the district court is

AFFIRMED.



     *
       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this opinion should not be published and is not precedent except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.
