IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 12, 2007 No. 07-50206 c/w No. 07-50256 Charles R. Fulbruge III Conference Calendar Clerk

UNITED STATES OF AMERICA Plaintiff-Appellee v. MARCO ANTONIO CALDERA-LASTRA Defendant-Appellant

Appeals from the United States District Court for the Western District of Texas USDC No. 3:06-CR-1842-ALL USDC No. 3:06-CR-2633-ALL

Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:* In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Marco Antonio Caldera-Lastra challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. This court has held that this issue is “fully foreclosed from further debate.” United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50206 c/w No. 07-50256 Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug.

28, 2007) (No. 07-6202). The Government’s motion for summary affirmance is GRANTED, the Government’s motion for an extension of time to file a brief is DENIED, and the judgments of the district court are AFFIRMED.