
    UNITED STATES of America, Plaintiff-Appellee, v. Herminio OCHOA-TRAIN, also known as Hermino Ochoa-Train, Defendant-Appellant.
    No. 06-50284
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Oct. 5, 2006.
    Joseph H. Gay, Jr., Assistant U.S. Attorney, San Antonio, TX, for Plaintiff-Appellee.
    Judy Fulmer Madewell, San Antonio, TX, for Defendant-Appellant.
    Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
   PER CURIAM:

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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     