                                                       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. 05-51449
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

OSCAR FRANCO-MUNOZ, also
known as Cesar Franco,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 3:05-CR-652-ALL
                       --------------------

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

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Oscar Franco-

Munoz raises arguments that are foreclosed by United States v.

Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir. 1997), which held

that a Texas felony conviction for possession of marijuana was an

“aggravated felony” under § 2L1.2(b) of the Sentencing

Guidelines, 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


     *
       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this opinion should not be published and is not precedent except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. 05-51449
                               -2-

Government’s motion for summary affirmance is GRANTED, and the

judgment of the district court is AFFIRMED.
