
    UNITED STATES of America, Plaintiff-Appellee v. Jose Ivan SANTOYA-DELGABO, also known as Oscar Arvizu, also known as Jose Santoyo-Delgado, Defendant-Appellant.
    No. 09-50060
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Aug. 18, 2009.
    Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.
    Mary Stillinger, El Paso, TX, for Defendant-Appellant.
    Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
   PER CURIAM:

Appealing the judgment in a criminal case, Jose Ivan Santoya-Delgado 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. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008). The Government’s motion for summary af-firmance 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     