                                                       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. 06-41169
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DANTE JIOVANNI DAMIAN-SERRANO,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC No. 5:06-CR-206
                        --------------------

Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Dante Jiovanni

Damian-Serrano (Damian) preserves for further review his

contention that his sentence is unreasonable because this court’s

post-Booker** rulings have effectively reinstated the mandatory

Sentencing Guideline regime condemned in Booker.   Damian concedes

that his argument is foreclosed by United States v. Mares, 402

F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005), and its

progeny, which have outlined this court’s methodology for

     *
       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this opinion should not be published and is not precedent except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.
     **
          United States v. Booker, 543 U.S. 220 (2005).
                           No. 06-41169
                                -2-

reviewing sentences for reasonableness.   Damian also 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.
