                                                       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. 05-10917
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

KRAIG STEPHENS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:04-CR-160-ALL
                      --------------------

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Kraig Stephens

raises arguments that are foreclosed by United States v. Cortez,

413 F.3d 502, 503 (5th Cir.), cert. denied, 126 S. Ct. 502

(2005), which held that the defendant’s appeal waiver barred a

claim that the sentence exceeded the statutory maximum as that

term was defined in Blakely v. Washington, 542 U.S. 296 (2004),

and by United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir.

2005), which held that the Due Process Clause does not bar 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that this opinion should not be published and is not precedent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. 05-10917
                                -2-

application of Justice Breyer’s remedy opinion in United States

v. Booker, 543 U.S. 220 (2005), when resentencing defendants in

light of Booker.   The Government’s motion for summary affirmance

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