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

FILED February 18, 2009 No. 08-50880 Conference Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

EMANUEL DE JESUS GUERRA-FLORES

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:07-CR-915-ALL

Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Emanuel De Jesus Guerra- Flores 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.