                                                       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
                                                                  Clerk
                            No. 05-41108
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ELIAS ZARATE-RIZO,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:04-CR-992-ALL
                       --------------------

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

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Elias Zarate-Rizo

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this opinion should not be published and is not precedent except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.
