
    UNITED STATES of America, Plaintiff-Appellee, v. Gabriel HERNANDEZ-ORDUNA, Defendant-Appellant.
    No. 06-40848
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Nov. 9, 2006.
    James Lee Turner, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Houston, TX, for Defendant-Appellant.
    Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.
   PER CURIAM:

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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     