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

                                                                 FILED
                                                               January 30, 2008
                               No. 07-50795
                            Conference Calendar            Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JAVIER RODRIGUEZ-DURAN

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 2:06-CR-1022-ALL


Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Javier Rodriguez-Duran
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.




      *
      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should not be published and is not precedent except under the limited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. 07-50795

7, 2008) (No. 07-6202). The Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.




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