                                                       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. 06-50813
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ERNESTO ABARCA-AYALA,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. 2:05-CR-633-ALL
                        --------------------

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Jose Ernesto

Abarca-Ayala 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this opinion should not be published and is not precedent except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.
