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

                                                                  FILED
                                                                  April 2, 2008
                                No. 07-51155
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

FERNANDO MALLEN-DE LUNA, also known as Tomas Salais-Diaz

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 5:07-CR-166-ALL


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Fernando Mallen-De Luna
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).




      *
      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should not be published and is not precedent except under the limited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. 07-51155

The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED.




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