IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 8, 2008

No. 08-50200

Conference Calendar Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ISIDRO PADILLA-VELA, also known as Cesar Padilla, also known as Juan

Antonio Padilla

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:07-CR-453-ALL

Before JOLLY, BARKSDALE, and HAYNES, Circuit Judges.

PER CURIAM:* Appealing the Judgment in a Criminal Case, Isidro Padilla-Vela raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that 8U.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, 128 S. Ct. 872 (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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.