          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                  No. 07-50371                FILED
                               Conference Calendar          August 8, 2007

                                                        Charles R. Fulbruge III
UNITED STATES OF AMERICA                                        Clerk

                                            Plaintiff-Appellee

v.

EDUARDO PENA-RODRIGUEZ

                                            Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:06-CR-1921-ALL


Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Eduardo Pena-Rodriguez 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should not be published and is not precedent except under the limited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.
