                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 8, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-51535
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARTIN EDUARDO MAGALLANES-RODRIGUEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 3:04-CR-761-ALL
                       --------------------

Before KING, GARWOOD, and JOLLY, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Martin Eduardo

Magallanes-Rodriguez 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that this opinion should not be published and is not precedent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.
