                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 5, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20916
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

CELEDINO GARZA-REYNA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:05-CR-165-ALL
                      --------------------

Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Celedino Garza-

Reyna 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, and by United States v. Lopez-Ortiz, 313 F.3d

225, 229-31 (5th Cir. 2002), which held that an immigration

judge's failure to inform an alien of his eligibility for

discretionary waiver of removal at his removal proceeding did not

render the proceeding fundamentally unfair.   The Government’s

     *
       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this opinion should not be published and is not precedent except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. 05-20916
                               -2-

motion for summary affirmance is GRANTED, and the judgment of the

district court is AFFIRMED.
