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

FILED December 4, 2008 No. 08-50690 Conference Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee v.

ISMAEL OSORIO-ZUNIGA, also known as Aurelio Rebollar-Rebollar, also known as Ismael Osoria-Zuniga

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:07-CR-1034-ALL

Before GARWOOD, GARZA, and OWEN, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Ismael Osorio-Zuniga 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).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-50690

The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.

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