United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 22, 2005 Charles R. Fulbruge III Clerk No. 04-51232 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OMAR FRANCISCO IBARRA-RODRIGUEZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 2:04-CR-437-1 -------------------- Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:* Appealing the Judgment in a Criminal Case, Omar Francisco Ibarra-Rodriguez raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.