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

                                                                  FILED
                                                                October 3, 2007
                                No. 07-10536
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

OMAR TORRES-SUSTAITA, also known as Omar Torres

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 1:06-CR-68-ALL


Before JOLLY, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Omar Torres-Sustaita 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should not be published and is not precedent except under the limited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. 07-10280

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




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