                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-41021
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAMES ELLIOTT GORTON,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       USDC No. 2:04-CR-270
                       --------------------

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case following a remand

for resentencing, James Elliott Gorton 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.   Gorton also

raises arguments that are foreclosed by United States v. Stone,

306 F.3d 241, 243 (5th Cir. 2002), which held that no Sixth

Amendment violation arises when a district court considers the

nature of a prior conviction rather than presenting the question

     *
       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this opinion should not be published and is not precedent except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.
                          No. 06-41021
                               -2-

to a jury in sentencing the defendant under the Armed Career

Criminal Act, and by United States v. Matthews, 312 F.3d 652, 657

(5th Cir. 2002), which held that under the law of the case

doctrine, an issue of fact or law decided on appeal may not be

reexamined by the appellate court on a subsequent appeal.    The

Government’s motion for summary affirmance is GRANTED, and the

judgment of the district court is AFFIRMED.
