                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 6, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-11328
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE NAVARRETE-FIERRO, also known as Jose Luis Fierro, also
known as Ricardo Navarro, also known as Jose Luis Navarrete,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 1:06-CR-23-1
                       --------------------

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Jose Navarrete-

Fierro (Navarrete) 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.   Navarrete also raises arguments

that are foreclosed by United States v. Mejia-Huerta, 480 F.3d

713, 723 (5th Cir. 2007), petition for cert. filed, 75 U.S.L.W.

3585 (U.S. Apr. 18, 2007) (No. 06-1381), which held that 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this opinion should not be published and is not precedent except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. 06-11328
                                -2-

district court is not required to provide notice prior to

sentencing of its sua sponte intention to impose a non-Guidelines

sentence.   The Government’s motion for summary affirmance is

GRANTED, and the judgment of the district court is AFFIRMED.
