                                                       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. 06-41113
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

LEONARDO ENRIQUE CRUZ,

                                     Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                        USDC No. 1:04-CR-152
                        --------------------

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Leonardo Enrique

Cruz 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this opinion should not be published and is not precedent except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.
