IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                     United States Court of Appeals
                                                              Fifth Circuit
                                 No. 06-41349              F I L E D
                              Conference Calendar           August 8, 2007

                                                        Charles R. Fulbruge III
UNITED STATES OF AMERICA                                        Clerk


                                            Plaintiff-Appellee
v.

JESUS FRANCISCO MORALES-AGUSTINE

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 5:04-CR-921


Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Jesus Francisco Morales-
Agustine (Morales) argues that the enhancement provisions of 8 U.S.C. § 1326(b)
are unconstitutional. To the extent his arguments may be raised in this appeal
following remand, United States v. Matthews, 

, 657 (5th Cir. 2002),
Morales’s arguments are foreclosed by Almendarez-Torres v. United States, 

, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision
and not a separate criminal offense. The appellant's motion for summary


      *
      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should not be published and is not precedent except under the limited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. 06-41349

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




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