
    UNITED STATES of America, Plaintiff-Appellee, v. Nicolas HERNANDEZ-ARZATE, Defendant-Appellant.
    No. 05-51302
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Sept. 8, 2006.
    Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.
    Ruben P. Morales, El Paso, TX, for Defendant-Appellant.
    
      Before KING, GARWOOD, and JOLLY, Circuit Judges.
   PER CURIAM:

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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     