                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    June 22, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 05-50049
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

CESAR HERNANDEZ-RIVERA,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 2:04-CR-579-1
                       --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Cesar Hernandez-

Rivera raises arguments that are foreclosed by Almendarez-Torres

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

prior conviction is a sentencing factor under 8 U.S.C.

§ 1326(b)(2) 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that this opinion should not be published and is not precedent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.
