United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 6, 2006

Charles R. Fulbruge III Clerk No. 05-41807 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GUADALUPE DUARTE-JIMENEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-1123-ALL --------------------

Before REAVLEY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Jose Guadalupe

Duarte-Jimenez raises arguments that are foreclosed by United

States v. Garcia-Mendez,

(5th Cir. 2005), cert.

denied,

(2006), which held that a Texas

conviction for burglary of a habitation was equivalent to

burglary of a dwelling and therefore was a crime of violence

under U.S.S.G. § 2L1.2, and by Almendarez-Torres v. United

States,

(1998), which held that

(b)(2) is a penalty provision and not a separate criminal

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41807 -2-

offense. The Government’s motion for summary affirmance is

GRANTED, and the judgment of the district court is AFFIRMED.