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

                                                                 FILED
                                                                March 5, 2008
                               No. 07-50937
                            Conference Calendar            Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JOHNNY GERARDO CASTRO-PADILLA, also known as Carlos Gerardo
Alvarado-Rivera, also known as Carlos Gerardo, also known as Alex Montenegro,
also known as Carlos Gerardo Alvarado, also known as Johny Castro-Padilla,
also known as Joni Gerardo Castro

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 5:04-CR-582-ALL


Before KING, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Johnny Gerardo Castro-
Padilla 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-



      *
      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should not be published and is not precedent except under the limited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. 07-50937

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.




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