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United States Court of Appeals, Fifth CircuitOct 3, 2007
249 Fed. Appx. 378 (5th Cir. 2007)

No. 07-10497 Conference Calendar.

October 3, 2007.

Bret E. Helmer, U.S. Attorney's Office Northern District of Texas, Fort Worth, TX, for Plaintiff-Appellee.

Federal Public Defender's Office Northern District of Texas, Fort Worth, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:06-CR-190-ALL.

Before JOLLY, DAVIS, and WIENER, Circuit Judges.

Appealing the Judgment in a Criminal Case, Leobardo Castro-Chavez raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). The Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.