                                                       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, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-10504
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

WALTER JOHN PROVENZANO,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                     USDC No. 4:04-CR-89-ALL-Y
                        --------------------

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Walter John

Provenzano raises arguments that are foreclosed by United States

v. Scroggins, 411 F.3d 572, 576-77 (5th Cir. 2005), which held

that the Due Process Clause does not bar the application of

Justice Breyer’s remedy opinion in United States v. Booker, 125

S. Ct. 738 (2005), when resentencing defendants in light of

Booker.   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that this opinion should not be published and is not precedent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.
