United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS I L E D F FOR THE FIFTH CIRCUIT December 12, 2007

Charles R. Fulbruge III Clerk No. 07-50897 Conference Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CARLOS ANGEL GUZMAN-MARTINEZ

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-338-ALL

Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Carlos Angel Guzman- Martinez 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 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.