                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   April 20, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-10051
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

AUDEN MONTOYA-CRUZ, also known as
Eddie White,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 5:04-CR-62-ALL-C
                       --------------------

Before SMITH, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Auden Montoya-

Cruz 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that this opinion should not be published and is not precedent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.
No.
-2-
