                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   July 11, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 07-40093
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE MARTINEZ,

                                      Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 7:06-CR-520-ALL
                        --------------------

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Jose Martinez

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.   The appellant’s motion for summary disposition 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this opinion should not be published and is not precedent except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.
