
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Ernesto TOVAR-MARTINEZ, Defendant-Appellant.
    No. 07-40103
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    July 11, 2007.
    Alex C. Lewis, US Attorney’s Office Southern District of Texas, McAllen, TX, for Plaintiff-Appellee.
    Norman E. McInnis, Assistant Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, McAllen, TX, for Defendant-Appellant.
    Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
   PER CURIAM:

Appealing the Judgment in a Criminal Case, Jose Ernesto Tovar-Martinez 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 appellant’s motion for summary disposition 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     