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

                                                                   FILED
                                                                 October 3, 2007
                                 No. 07-40314
                              Conference Calendar             Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JOSE MARTIN GUTIERREZ-FUENTES

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:06-CR-1591


Before JOLLY, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Jose Martin Gutierrez-
Fuentes 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.




      *
      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should not be published and is not precedent except under the limited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. 07-20230

28, 2007) (No. 07-6202). The appellant's motion for summary disposition is
GRANTED, and the judgment of the district court is AFFIRMED.




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