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

                               No. 06-41625               F I L E D
                            Conference Calendar            August 8, 2007

                                                      Charles R. Fulbruge III
                                                              Clerk
UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

MARCO ANTONIO HERNANDEZ-HERNANDEZ

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas
                        USDC No. 5:06-CR-451-ALL


Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
     Appealing the Judgment in a Criminal Case, Marco Antonio Hernandez-
Hernandez 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should not be published and is not precedent except under the limited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.
