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

FILED December 5, 2007 No. 07-50679 Conference Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JORGE ALBERTO CRUZ-HERNANDEZ

Defendant-Appellant

Consolidated with No. 07-50680 Conference Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JORGE A CRUZ-HERNANDEZ

Defendant-Appellant

Appeals from the United States District Court for the Western District of Texas USDC No. 1:06-CR-295-ALL USDC No. 1:07-CR-41-ALL No. 07-50679 c/w No. 07-50680

Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges. PER CURIAM:* Appealing the Judgments in Criminal Cases, Jorge Alberto Cruz- Hernandez 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. United States v. Pineda-Arrellano,

(5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). The Government’s motion for summary affirmance is GRANTED, and the judgments of the district court are 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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