                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                             September 6, 2007
                   FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                No. 07-50237
                             Conference Calendar


UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ROBERTO PENA-ROJAS, also known as Benjamin Arias-Gutierrez

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:06-CR-1918-1


Before DeMOSS, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Roberto Pena-Rojas 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. See United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007). 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should not be published and is not precedent except under the limited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.
