                                                       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
                                                                  Clerk
                            No. 05-51536
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

EFREN GUTIERREZ, JR.,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. 3:05-CR-576-ALL
                        --------------------

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Efren Gutierrez,

Jr., 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that this opinion should not be published and is not precedent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.
