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. 04-51201 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CARLOS MADRIGAL-PINEDA, also known as Miguel Torres, also known as Roberto Hernandez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-693-ALL --------------------

Before SMITH, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Juan Carlos

Madrigal-Pineda 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. -2-