                                                   United States Court of Appeals
                                                            Fifth Circuit

               IN THE UNITED STATES COURT OF APPEALS      F I L E D
                       FOR THE FIFTH CIRCUIT                July 13, 2006

                                                       Charles R. Fulbruge III
                                                               Clerk
                            No. 05-41531
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALFREDO RINCON-GARZA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-504-ALL
                      --------------------

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Alfredo Rincon-

Garza 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that this opinion should not be published and is not precedent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.
