                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
                      REVISED JANUARY 26, 2007
               IN THE UNITED STATES COURT OF APPEALS           October 5, 2006
                        FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                              No. 06-40472
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GILBERTO GARCIA-LOZANO,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-1019-ALL
                       --------------------

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

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Gilberto Garcia-

Lozano 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; by United States v. Garcia-Mendez, 420 F.3d 454

(5th Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006), which held

that a Texas conviction for burglary of a habitation was

equivalent to burglary of a dwelling; and by United States v.


     *
       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this opinion should not be published and is not precedent except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. 06-40472
                               -2-

Carmichael, 343 F.3d 756, 761-62 (5th Cir. 2003), which held that

a challenge to the district court's order requiring the defendant

to cooperate in the collection of a DNA sample as a condition of

supervised release is not ripe for review on direct appeal.   The

Government’s motion for summary affirmance is GRANTED.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
