                                                       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, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-10454
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ABRAHAM GARCIA-FRANCO,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:05-CR-329-ALL
                       --------------------

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Abraham Garcia-

Franco raises arguments that are foreclosed by United States v.

Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006), which held that

the district court’s refusal to factor in, when sentencing a

defendant, the sentencing disparity caused by early disposition

programs does not render a sentence unreasonable, 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 offense.   The Government’s motion for

     *
       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this opinion should not be published and is not precedent except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. 06-10454
                               -2-

summary affirmance is GRANTED, and the judgment of the district

court is AFFIRMED.
