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

                                                                  FILED
                                                                October 3, 2007
                                No. 07-40532
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ADAN GARCIA-FIGUEROA, also known as Adan Toro-Garcia

                                           Defendant-Appellant


                 Appeals from the United States District Court
                      for the Southern District of Texas
                            USDC No. 7:07-CR-46-1


Before JOLLY, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Adan Garcia-Figueroa 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should not be published and is not precedent except under the limited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. 07-20230

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




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