IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 4, 2008 No. 07-51270 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. EVARISTO SALAS-MARTINEZ, also known as Evaristo Martinez-Salas Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-1044

Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.

PER CURIAM:* Appealing the Judgment in a Criminal Case, Evaristo Salas-Martinez 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51270 The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.