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

                                                                            FILED
                                                                          October 8, 2008
                                     No. 08-50287
                                  Conference Calendar                 Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

FRANKLIN ALEXANDER RODRIGUEZ-DIAZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 2:07-CR-632-ALL


Before JOLLY, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appealing the Judgment in a Criminal Case, Franklin Alexander
Rodriguez-Diaz 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).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
