                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 7, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-41087
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FAUSTINO DIAZ-RODRIGUEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 2:06-CR-125-ALL
                       --------------------

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Faustino Diaz-

Rodriguez raises arguments that are foreclosed by United States

v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir. 2005), cert.

denied, 126 S. Ct. 1398 (2006), which held that a Texas

conviction for burglary of a habitation was equivalent to

burglary of a dwelling and therefore was a crime of violence

under U.S.S.G. § 2L1.2, and 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

     *
       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this opinion should not be published and is not precedent except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. 06-41087
                                -2-

offense.   The Government’s motion for summary affirmance is

GRANTED, and the judgment of the district court is AFFIRMED.
