United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 13, 2006 Charles R. Fulbruge III No. 05-11096 Clerk Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELIO DE JESUS ANDINO-RODRIGUEZ, also known as Marcus Pedro Cabrera, also known as Miguel Saavedra, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 1:05-CR-9-ALL -------------------- Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:* Appealing the Judgment in a Criminal Case, Elio De Jesus Andino-Rodriguez raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.