                                                       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. 06-41148
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARCOS TULIO ZAYAS, also known as Salvador Pinado-Martinez,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 7:05-CR-602-ALL
                        --------------------

Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Marcos Tulio

Zayas 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.   Zayas 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 methodology for reviewing

     *
       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this opinion should not be published and is not precedent except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. 06-41148
                                -2-

sentences for reasonableness.   Zayas also preserves for further

review his contention that his sentence is unreasonable because

the illegal reentry guideline is unduly severe.    Zayas 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, Zayas

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.
