United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 20, 2005

Charles R. Fulbruge III Clerk No. 04-11076 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAGOBERTO RODRIGUEZ-GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:04-CR-108-ALL-P --------------------

Before SMITH, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Dagoberto

Rodriguez-Garcia raises arguments that are foreclosed by

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.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.