
    UNITED STATES of America, Plaintiff-Appellee, v. Eusebio MACARIO-FUENTES, Defendant-Appellant.
    No. 05-51120
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    July 13, 2006.
    Joseph EL Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Walter Mabry Reaves, Jr., Law Offices of Walter Reaves, West, TX, for Defendantr-Appellant.
    Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
   PER CURIAM:

Appealing the Judgment in a Criminal Case, Eusebio Macario-Fuentes raises arguments that 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 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     