                                                       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. 05-50307
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALFONSO BENITEZ-RODRIGUEZ, also known as Alfonso Rodriguez-
Benitez, also known as Valentin Benitez-Rodriguez, also known as
Onesimo Benitz, also known as Samuel Benitez Noblez, also known
as Valentine Benitez, also known as Onesimo Ponce,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 1:04-CR-249-ALL
                       --------------------

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Alfonso Benitez-

Rodriguez raises arguments that are foreclosed by United States

v. Scroggins, 411 F.3d 572, 576-77 (5th Cir. 2005), which held

that the Due Process Clause does not bar the application of

Justice Breyer’s remedy opinion in United States v. Booker, 125

S. Ct. 738 (2005), when resentencing defendants in light of


     *
        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that this opinion should not be published and is not precedent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.
                           No. 05-50307
                                -2-

Booker, and 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.
