                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-50757
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BENITO PULGARIN-RUBIO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 3:04-CR-2373-ALL
                       --------------------

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Benito Pulgarin-

Rubio 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that this opinion should not be published and is not precedent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.
