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

                                                                      FILED
                                                                   December 12, 2007
                                  No. 07-20600
                               Conference Calendar              Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA

                                              Plaintiff-Appellee

v.

RAFAEL LUMBRERAS-AMARO, also known as Fransisco Amaro-Lumbreras,
also known as Rafael Lumbreras

                                              Defendant-Appellant


                  Appeal from the United States District Court
                       for the Southern District of Texas
                           USDC No. 4:07-CR-55-ALL


Before REAVLEY, BARKSDALE, AND GARZA, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Rafael Lumbreras-Amaro
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), petition for cert. filed (Aug. 28, 2007) (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should not be published and is not precedent except under the limited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. 07-20600

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




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