                                                       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. 05-40763
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAMON REYES-REYES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-796-ALL
                      --------------------

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Ramon Reyes-Reyes

raises arguments that are foreclosed by United States v. Valdez-

Maltos, 443 F.3d 910, 911 (5th Cir.), cert. denied,        S. Ct.

(Oct. 2, 2006)(No. 06-5473), and United States v. Garcia-Mendez,

420 F.3d 454, 457 (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, and 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

     *
       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this opinion should not be published and is not precedent except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. 05-40763
                               -2-

not a separate criminal offense.   The Government’s motion for

summary affirmance is GRANTED, and the judgment of the district

court is AFFIRMED.
