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

                                                                   FILED
                                                                 December 5, 2007
                                 No. 07-50672
                              Conference Calendar             Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JOSE MARTINEZ-RIOS, true name Fidel Moscosa-Guaderrama

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:07-CR-4-ALL


Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Jose Martinez-Rios
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 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should not be published and is not precedent except under the limited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.
