                                                       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. 06-40098
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LEOPOLDO RIOS-CRUZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:03-CR-1390-ALL
                       --------------------

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Leopoldo Rios-

Cruz raises arguments that are foreclosed by United States v.

Alfaro-Hernandez, 453 F.3d 280, 282 (5th Cir. 2006), which held

that, for purposes of determining the propriety of a sentence

imposed following the revocation of the defendant’s supervised

release, where the statutes under which the defendant was

convicted did not specify the felony class, the felony

classification of the defendant’s underlying offense is

determined by the section defining the offense, not from 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this opinion should not be published and is not precedent except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. 06-40098
                               -2-

maximum Sentencing Guidelines sentence as calculated by the

district court and applicable to the defendant.   The Government’s

motion for summary affirmance is GRANTED, and the judgment of the

district court is AFFIRMED.
