United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 17, 2004

Charles R. Fulbruge III Clerk No. 04-50703 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

CARLOS NOE SALAZAR-MONTES, also known as Carlos Noe Salazar, also known as Carlos Salazar,

Defendant-Appellant,

Consolidated with No. 04-50704

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

CARLOS NOE SALAZAR, also known as Carlos Salazar,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-299-ALL-FM --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Carlos Noe

Salazar-Montes raises arguments that are foreclosed by

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 04-50703 c/w No. 04-50704 -2-

Almendarez-Torres v. United States,

(1998),

which held that a prior conviction is a sentencing factor under

(b)(2) and not a separate criminal offense. The

Government’s motion for summary affirmance is GRANTED, and the

judgment of the district court is AFFIRMED.