                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 6, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-51089
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FERNANDO GUTIERREZ-MOLENA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Western District of Texas
                    USDC No. 2:06-CR-303-ALL
                      --------------------

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Fernando

Gutierrez-Molena 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 Government’s motion for

summary affirmance 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this opinion should not be published and is not precedent except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.
