
    UNITED STATES of America, Plaintiff-Appellee v. Pedro ANGUIANO-ROSALES, Defendant-Appellant.
    No. 07-11056
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Aug. 19, 2008.
    Juan Carlos Rodriguez, U.S. District Court, Dallas, TX, for Plaintiff-Appellee.
    Kevin Joel Page, Federal Public Defender’s Office, Northern District of Texas, Dallas, TX, for Defendant-Appellant.
    Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
   PER CURIAM:

Pedro Anguiano-Rosales appeals his sentence following his guilty plea for illegal reentry following removal in violation of 8 U.S.C. § 1326. For the first time on appeal, Anguiano-Rosales contends that Kimbrough v. United States, — U.S. —, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), requires that his sentence be vacated and remanded for resentencing so that the district court can consider the sentencing disparity between defendants in the Northern District of Texas and similarly situated defendants in jurisdictions with a fast-track program. Although not conceded by Anguiano-Rosales, this exact argument was decided contrary to his position in United States v. Gomez-Herrera, 523 F.3d 554, 557-64 (5th Cir.), petition for cert. filed (July 2, 2008) (No. 08-5226) and United States v. Rodriguez, 523 F.3d 519 (5th Cir.), petition for cert. filed (June 30, 2008) (No. 08-5101), and is foreclosed. To the extent that Anguiano-Rosales’s appeal raises an equal protection argument, it is also foreclosed by circuit precedent. See United States v. Lopez-Velasquez, 526 F.3d 804, 808 (5th Cir.), petition for cert. filed (July 25, 2008) (No. 08-5514).

Anguiano-Rosales also 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. United States v. Pinedor-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), cert. denied, — U.S. —, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008).

Because all of Anguiano-Rosales’s arguments are foreclosed by circuit precedent, the Government moves for summary affir-mance. In the alternative, the Government requests an extension of time in which to file a brief on the merits. The district court’s judgment is AFFIRMED, the Government’s motion for summary af-firmance is GRANTED, and the Government’s motion for an extension of time is DENIED. 
      
       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.
     