                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 5, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-50206
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE JUAN ARRIAGA-LOPEZ, also known as Juan Arriaga-
Martinez, also known as Jose Juan Lopez-Arriaga,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 3:05-CR-1917-ALL
                       --------------------

Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Jose Juan

Arriaga-Lopez 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, and by United States v.

Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir. 1997), which held

that a Texas felony conviction for possession of marijuana was an

"aggravated felony" under § 2L1.2(b) of the Sentencing


     *
       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this opinion should not be published and is not precedent except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. 06-50206
                                -2-

Guidelines.   The Government’s motion for summary affirmance is

GRANTED, and the judgment of the district court is AFFIRMED.
