                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 17, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-50789
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

VICTOR RODRIGUEZ-VERA, also known
as Victor Rodriguez,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. 3:04-CR-256-ALL-FM
                       --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Victor Rodriguez-

Vera 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this opinion should not be published and is not precedent except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.
