No. 07-50237 Conference Calendar.
September 6, 2007.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Donna F. Coltharp, Federal Public Defender's Office Western District of Texas, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 3:06-CR-1918-1.
Before DeMOSS, DENNIS, and OWEN, Circuit Judges.
Appealing the Judgment in a Criminal Case, Roberto Pena-Rojas 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. See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). The Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.