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

                                                                      FILED
                                                                   December 5, 2007
                                  No. 07-40649
                               Conference Calendar              Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA

                                              Plaintiff-Appellee

v.

OSCAR PIMENTEL-HERNANDEZ

                                              Defendant-Appellant


                  Appeal from the United States District Court
                       for the Southern District of Texas
                          USDC No. 5:07-CR-197-ALL


Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Oscar Pimentel-Hernandez
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. See United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
The appellant’s motion for summary disposition 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should not be published and is not precedent except under the limited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.
