                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 12, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40766
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ANTONIO DE MICHELE-MERCHAN,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-2479-ALL
                       --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Antonio De

Michele-Merchan raises arguments that are foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),

which held that a prior conviction is a sentencing factor under 8

U.S.C. § 1326(b)(2) 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that this opinion should not be published and is not precedent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.
