IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 30, 2008 No. 07-11146 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. COSME SANCHEZ-GALLARDO, also known as Jose Salinas-Gonzales Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:07-CR-34-ALL

Before REAVLEY, JOLLY, and GARZA, Circuit Judges.

PER CURIAM:* Appealing the Judgment in a Criminal Case, Cosme Sanchez-Gallardo 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-11146 The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.