                                                       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. 05-20478
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ADEBAYO MOHAMMED,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-421-ALL
                      --------------------

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Adebayo Mohammed

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, 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 to a jury in sentencing the

defendant under the Armed Career Criminal Act, and by United

     *
       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this opinion should not be published and is not precedent except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. 05-20478
                               -2-

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 did 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.
