IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 5, 2007 No. 07-50611 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. CORNELIO HEREDIA-GARCIA, also known as Jesus Herrejon-Garcia Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:06-CR-2219-ALL

Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.

PER CURIAM:* Appealing the Judgment in a Criminal Case, Cornelio Heredia-Garcia 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), petition for cert. filed (Aug.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50611 28, 2007) (No. 07-6202). The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.