IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 18, 2009
                                     No. 08-50880
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

EMANUEL DE JESUS GUERRA-FLORES

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 2:07-CR-915-ALL


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Appealing the Judgment in a Criminal Case, Emanuel De Jesus Guerra-
Flores raises arguments that are foreclosed by Almendarez-Torres v. United
States, 

, 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, 

, 625 (5th Cir. 2007), cert. denied, 

(2008).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.