IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 5, 2008
No. 07-51203
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANTONIO BANEGAS-HERNANDEZ, also known as Juan Tinoco Garcia
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-329-ALL
Before KING, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Antonio Banegas-Hernandez
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. United States v. Pineda-
Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008).
*
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should not be published and is not precedent except under the limited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.
No. 07-51203
The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED.
2