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

                                                                     FILED
                                                                  November 8, 2007
                                  No. 07-50390
                               Conference Calendar              Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

GABRIEL GAITAN-TOVALLES, also known as Gabriel Gaitan

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 5:06-CR-515-1


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Gabriel Gaitan-Tovalles
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), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). The




      *
      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should not be published and is not precedent except under the limited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. 07-50390

Government’s motion for summary affirmance is GRANTED, and the judgment
of the district court is AFFIRMED.




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