
    UNITED STATES of America, Plaintiff-Appellee, v. Juan Francisco PENA-RUBIO, Defendant-Appellant.
    No. 06-50761
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    May 2, 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.
    Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.
   PER CURIAM:

Appealing the Judgment in a Criminal Case, Juan Francisco Pena-Rubio 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 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     