United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 6, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 07-50237
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERTO PENA-ROJAS, also known as Benjamin Arias-Gutierrez
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1918-1
Before DeMOSS, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Roberto Pena-Rojas raises
arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and
not a separate criminal offense. See United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007). 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should not be published and is not precedent except under the limited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.