IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 30, 2008
No. 07-51144
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE ROBERTO AVALOS-PEREZ, also known as Roberto Avalos-Melgar
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-698-1
Before REAVLEY, JOLLY, and GARZA, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Jose Roberto Avalos-Perez
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should not be published and is not precedent except under the limited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. 07-51144
The Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED.
2