United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 8, 2006 Charles R. Fulbruge III No. 06-20246 Clerk Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DIMAS ALVAREZ-FERMAN, also known as Dimas Alvarez, also known as Rogolio Alvarez-Cruz, also known as Rogelio Alvarez-Cruz, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:05-CR-407 -------------------- Before KING, GARWOOD, and JOLLY, Circuit Judges.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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