                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 8, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40166
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ELY MARTINEZ-FAJARDO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-717-ALL
                      --------------------

Before KING, GARWOOD, and JOLLY, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Ely Martinez-

Fajardo raises arguments that are foreclosed 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 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that this opinion should not be published and is not precedent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.
