United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 17, 2005 Charles R. Fulbruge III Clerk No. 05-50211 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALFREDO HERNANDEZ-HERNANDEZ, also known as Alfredo Lopez Hernandez, also known as David Rodriguez, also known as David Rodriguez Flores, also known as Richard Olvera, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 5:04-CR-276-ALL -------------------- Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:* Appealing the Judgment in a Criminal Case, Alfredo Hernandez-Hernandez 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

No. -2-