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

                                                                  FILED
                                                                January 30, 2008
                                No. 07-40817
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

HERIBERTO MOYA-MENA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 7:07-CR-478-ALL


Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Heriberto Moya-Mena raises
arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 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, 2008 WL 59441 (Jan. 7, 2008) (No. 07-6202).




      *
      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should not be published and is not precedent except under the limited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. 07-40817

The appellant’s motion for summary disposition is GRANTED, and the judgment
of the district court is AFFIRMED.




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