                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               MIN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 August 17, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-50228
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RUBEN TINAJERO-RIVERA,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 3:04-CR-1870
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Ruben Tinajero-

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that this opinion should not be published and is not precedent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.
