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. 06-40822 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REYNALDO MORALES-GUTIERREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:06-CR-50-ALL --------------------

Before REAVLEY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Reynaldo Morales-

Gutierrez raises arguments that are foreclosed by Almendarez-

Torres v. United States,

(1998), which held

that

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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