United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 9, 2005

Charles R. Fulbruge III Clerk No. 05-50933 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE RODOLFO BORUNDA-RIVERA, also known as Jose Borunda,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:05-CR-66-ALL --------------------

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Jose Rodolfo

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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