                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 13, 2006

                                                          Charles R. Fulbruge III
                            No. 05-20892                          Clerk
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MOISES MONTALVO-GUTIERREZ, also known as Moises
Montalvo Gutierrez, also known as Moises Gutierrez,
also known as Moises Perez Moreno,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 4:05-CR-209-ALL
                        --------------------

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Moises Montalvo-

Gutierrez 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.


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that this opinion should not be published and is not precedent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