         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                    United States Court of Appeals
                                                             Fifth Circuit
                               No. 06-51004               F I L E D
                            Conference Calendar
                                                           August 8, 2007

                                                      Charles R. Fulbruge III
UNITED STATES OF AMERICA                                      Clerk

                                         Plaintiff-Appellee

v.

JELVIS ANTONIO AMAYA-RODRIGUEZ

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Western District of Texas
                         USDC No. 2:06-CR-96-ALL


Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
     Appealing the Judgment in a Criminal Case, Jelvis Antonio Amaya-
Rodriguez 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should not be published and is not precedent except under the limited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.
