                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 2, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-20189
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ISRAEL CABALLERO-ZARATE, also known as Israel Zarate
Caballero,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 4:05-CR-416-ALL
                        --------------------

Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Israel Caballero-

Zarate (Caballero) preserves for further review his contention

that his sentence is unreasonable because this court’s post-

Booker** rulings have effectively reinstated the mandatory

Sentencing Guideline regime condemned in Booker.   Caballero

concedes that his argument is foreclosed by United States v.

Mares, 402 F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43


     *
       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this opinion should not be published and is not precedent except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.
     **
          United States v. Booker, 543 U.S. 220 (2005).
                           No. 06-20189
                                -2-

(2005), and its progeny, which have outlined this court’s

methodology for reviewing sentences for reasonableness.

Caballero also preserves for further review his contention that

his sentence is unreasonable because the illegal reentry

guideline is unduly severe.   Caballero concedes that this

argument is foreclosed by United States v. Tzep-Mejia, 461 F.3d

522, 527 (5th Cir. 2006), which held that “Booker does not give

sentencing courts the discretion to impose a non-Guideline

sentence based on the courts’ disagreement with Congressional and

Sentencing Commission policy.”   Finally, Caballero 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.
