United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 7, 2007

Charles R. Fulbruge III Clerk No. 06-20594 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN LUIS SALDANA-GUERRERO, also known as Juan Luis Saldana, Jr., also known as Juan Luis Saldana Guerrero, also known as Juan Saldana Guerrero,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:06-CR-18 --------------------

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Juan Luis

Saldana-Guerrero 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 8 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-20594 -2-

§ 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.