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

                                                                 FILED
                                                                August 19, 2008
                                No. 07-11056
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

PEDRO ANGUIANO-ROSALES

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                         USDC No. 3:07-CR-162-ALL


Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Pedro Anguiano-Rosales appeals his sentence following his guilty plea for
illegal reentry following removal in violation of 8 U.S.C. § 1326. For the first
time on appeal, Anguiano-Rosales contends that Kimbrough v. United States,
128 S. Ct. 558 (2007), requires that his sentence be vacated and remanded for
resentencing so that the district court can consider the sentencing disparity
between defendants in the Northern District of Texas and similarly situated



      *
      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should not be published and is not precedent except under the limited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. 07-11056

defendants in jurisdictions with a fast-track program. Although not conceded
by Anguiano-Rosales, this exact argument was decided contrary to his position
in United States v. Gomez-Herrera, 523 F.3d 554, 557-64 (5th Cir.), petition for
cert. filed (July 2, 2008) (No. 08-5226) and United States v. Rodriguez, 523 F.3d
519 (5th Cir.), petition for cert. filed (June 30, 2008) (No. 08-5101), and is
foreclosed.   To the extent that Anguiano-Rosales’s appeal raises an equal
protection argument, it is also foreclosed by circuit precedent. See United States
v. Lopez-Velasquez, 526 F.3d 804, 808 (5th Cir.), petition for cert. filed (July 25,
2008) (No. 08-5514).
      Anguiano-Rosales also 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), cert. denied,
128 S. Ct. 872 (2008).
      Because all of Anguiano-Rosales’s arguments are foreclosed by circuit
precedent, the Government moves for summary affirmance. In the alternative,
the Government requests an extension of time in which to file a brief on the
merits. The district court’s judgment is AFFIRMED, the Government’s motion
for summary affirmance is GRANTED, and the Government’s motion for an
extension of time is DENIED.




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