
    UNITED STATES of America, Plaintiff-Appellee v. Jesus Francisco MORALES-AGUSTINE, Defendant-Appellant.
    No. 06-41349
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Aug. 8, 2007.
    James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    
      Marjorie A. Meyers, Federal Public Defender, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
   PER CURIAM:

Appealing the Judgment in a Criminal Case, Jesus Francisco Morales-Agustine (Morales) argues that the enhancement provisions of 8 U.S.C. § 1326(b) are unconstitutional. To the extent his arguments may be raised in this appeal following remand, United States v. Matthews, 312 F.3d 652, 657 (5th Cir.2002), Morales’s arguments are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense. The appellant’s motion for summary disposition 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     