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

FILED January 30, 2008 No. 07-40367 Conference Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

FERNANDO CASTANEDA-PEREZ

Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:06-CR-1027-1

Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Fernando Castaneda-Perez 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), cert. denied,

(Jan. 7, 2008) (No. 07-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40367

6202). The appellant’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.

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