                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                December 6, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-50766
                       Conference Calendar



UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

versus

JUAN ALBERTO MONTES, JR., also known as Jose Maria Gonzalez,
also known as Jorge Montes-Ramos,

                                   Defendant-Appellant.




                        Consolidated with
                           No. 06-50769
                       Conference Calendar



UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

versus

JUAN ALBERTO MONTES, JR., also known as Jose Maria Gonzalez,

                                   Defendant-Appellant.


                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                    USDC No. 3:03-CR-1943-ALL
                    USDC No. 3:05-CR-2475-ALL
                       --------------------
                         No. 06-50766 c/w
                           No. 06-50769
                                -2-

Before REAVLEY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Juan Alberto

Montes, Jr., 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this opinion should not be published and is not precedent except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.
