                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                           F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                July 13, 2006

                                                       Charles R. Fulbruge III
                                                               Clerk
                            No. 05-40568
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE VICTOR RUFINO-CERVANTES,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 5:04-CR-2308
                       --------------------

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Jose Victor

Rufino-Cervantes 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that this opinion should not be published and is not precedent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.
