          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                FILED
                                                                June 4, 2008
                               No. 07-51449
                            Conference Calendar            Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JORGE VILLANUEVA

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 3:07-CR-811-ALL


Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Jorge Villanueva
raises arguments that are foreclosed by United States v. Rueda-Rivera, 396 F.3d
678, 680 (5th Cir. 2005), which held that the admission into evidence of a
Certificate of Nonexistence of Record to establish that the Government had not
consented to Villanueva’s presence in the United States does not violate the
Confrontation Clause, and Almendarez-Torres v. United States, 523 U.S. 224,



      *
      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should not be published and is not precedent except under the limited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. 07-51449

235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not
a separate criminal offense. United States v. Pineda-Arrellano, 492 F.3d 624,
625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008). The Government’s
motion for summary affirmance is GRANTED, and the judgment of the district
court is AFFIRMED.




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