                                                       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. 06-40558
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ANGEL ESQUIVEL-CANTERA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-1005-ALL
                       --------------------

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

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Jose Angel

Esquivel-Cantera raises arguments that are foreclosed by United

States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.), cert.

denied, 2006 U.S. LEXIS 6189 (U.S. Oct. 2, 2006)(No. 06-5473),

and 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 by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C.

     *
       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this opinion should not be published and is not precedent except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. 06-40558
                                -2-

§ 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.
