                                                       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
                            No. 06-40379                          Clerk
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARCO ANTONIO OVALLE-CASTILLO, also known
as Francisco Javier Avilla-Valencia,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-845-ALL
                      --------------------

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

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Marco Antonio

Ovalle-Castillo 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. Garcia-

Mendez, 420 F.3d 454 (5th Cir. 2005), cert. denied, 126 S. Ct.

1398 (2006), which held that a Texas conviction for burglary of a

habitation was equivalent to burglary of a dwelling.     The



     *
       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this opinion should not be published and is not precedent except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. 06-40379
                               -2-

Government’s motion for summary affirmance is GRANTED, and the

judgment of the district court is AFFIRMED.
