                                                       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. 06-41200
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE TOMAS JARQUIN-ESPINOSA,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 7:06-CR-245-ALL
                        --------------------

Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Jose Tomas

Jarquin-Espinosa (Jarquin) 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.   Jarquin

concedes that his argument is foreclosed by United States v.

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

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

     *
       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this opinion should not be published and is not precedent except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. 06-41200
                                -2-

methodology for reviewing sentences for reasonableness.   Jarquin

also preserves for further review his contention that his

sentence is unreasonable because the illegal reentry guideline is

unduly severe.   Jarquin 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, Jarquin 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.
