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United States Court of Appeals, Fifth CircuitFeb 7, 2007
216 Fed. Appx. 449 (5th Cir. 2007)

No. 06-51040 Conference Calendar.

February 7, 2007.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Judy Fulmer Madewell, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 3.06-CR-277-ALL.

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

Appealing the Judgment in a Criminal Case, Wilver Vasquez-Najera 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. The Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.