                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 5, 2006

                                                            Charles R. Fulbruge III
                              No. 06-50276                          Clerk
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus


ENRIQUE MADRID-MARQUEZ,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 3:05-CR-2229
                       --------------------

Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Enrique Madrid-

Marquez raises arguments that are foreclosed by United States v.

Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), cert. denied, 126

S. Ct. 1398 (2006), which held that a Texas conviction for

burglary of a habitation was equivalent to burglary of a dwelling

and therefore was a crime of violence under U.S.S.G. § 2L1.2, 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this opinion should not be published and is not precedent except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. 06-50276
                               -2-

summary affirmance is GRANTED, and the judgment of the district

court is AFFIRMED.
