                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 7, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-10942
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

NANCY GUTIERREZ SMELOSKY, also known as Nancy Smelosky,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:04-CR-39-ALL
                       --------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Nancy Gutierrez

Smelosky 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, 543 U.S. 220

(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this opinion should not be published and is not precedent except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.
