                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 7, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-50681
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE OSORIO-HERNANDEZ, also known as Luis Dela Cruz,

                                    Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Western District of Texas
                        USDC No. 3:05-CR-2738
                         --------------------

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Jose Osorio-

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this opinion should not be published and is not precedent except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