
    UNITED STATES of America, Plaintiff-Appellee v. Raul HERRERA-PINA, Defendant-Appellant.
    No. 08-51078
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    April 30, 2009.
    Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Raul Herrera-Pina, pro se.
    
      Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
   PER CURIAM:

Appealing the judgment in a criminal case, Raul Herrera-Pina raises arguments that are foreclosed by Almendarez-Toms 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 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     