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

FILED November 5, 2008 No. 08-50465 Conference Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee v.

JOSE ANTONIO MURILLO-MURILLO

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-2957

Before DAVIS, STEWART, and DENNIS, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Jose Antonio Murillo-Murillo 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,

(2008). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.