IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 2, 2008 No. 07-51339 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. HUGO NOEL ROSALES, also known as Hugo Lopez Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-1165-ALL

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:* Appealing the Judgment in a Criminal Case, Hugo Noel Rosales 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), cert. denied, 128 S. Ct. 872 (2008).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51339 The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.