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* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 11, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-50122
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO LOPEZ-HERNANDEZ, also known as Fernando Abitia,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1710-ALL
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Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Fernando Lopez-
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. The Government’s motion for summary
affirmance is GRANTED, and the judgment of the district court is
AFFIRMED.
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