                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 7, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-10782
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DUC NGUYEN,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 4:04-CR-100-3
                       --------------------

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Duc Nguyen raises

arguments that are foreclosed by United States v. Austin, 432

F.3d 598, 599-600 (5th Cir. 2005), which held that the

application of the remedial opinion of United States v. Booker,

543 U.S. 220 (2005), to a sentencing hearing where the underlying

offense was committed pre-Booker does not violate constitutional

due process or ex post facto requirements.    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this opinion should not be published and is not precedent except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.
