
    UNITED STATES of America, Plaintiff-Appellee, v. Nelson Virgilio HERNANDEZ-AGUIRRE, Defendant-Appellant.
    No. 05-41283
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Nov. 9, 2006.
    James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for PlaintiffAppellee.
    Marjorie A. Meyers, Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for D efendant-App ellant.
    Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.
   PER CURIAM:

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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     