                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    July 11, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-41560
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JAVIER SUSTAITA-SAENZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:06-CR-483-ALL
                       --------------------

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Javier Sustaita-

Saenz 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 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this opinion should not be published and is not precedent except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.
