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

FILED April 30, 2009 No. 08-51078 Conference Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAUL HERRERA-PINA,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-1907-ALL

Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges. PER CURIAM:* Appealing the judgment in a criminal case, Raul Herrera-Pina 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.