                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                             September 6, 2007
                   FOR THE FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                No. 07-40038
                             Conference Calendar


UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

FULGENCIO CORTEZ-ESCOBAR

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 5:06-CR-1104-1


Before DeMOSS, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Fulgencio Cortez-Escobar
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). 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should not be published and is not precedent except under the limited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.
