                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                             August 8, 2007
                   FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                 No. 07-50090
                              Conference Calendar


UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ELEUTERIO PEREZ-RAYOS

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 3:06-CR-1176


Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Eleuterio Perez-Rayos raises
arguments challenging the constitutionality of 8 U.S.C. § 1326(b) and 21 U.S.C.
§ 851 that he concedes 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. The Government's motion for summary
affirmance is GRANTED, and the judgment of the district court is AFFIRMED.



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should not be published and is not precedent except under the limited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