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

FILED December 5, 2007 No. 07-40502 Conference Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

NAZARIO CERVIN-ORTIZ, also known as Agustine Aguirre-Rojas

Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:07-CR-124-1

Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Nazario Cervin-Ortiz raises arguments that are foreclosed by Almendarez-Torres v. United States,

(1998), which held that

(b)(2) is a penalty provision and not a separate criminal offense. See United States v. Pineda-Arrellano,

(5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.