Appealing the Judgment in a Criminal Case, Eloy Rios-Rosas 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. Pinedar-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, - U.S. -, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008). The judgment of the district court is AFFIRMED. The Government’s motion for summary affirmance, which relies on inapposite authority, is DENIED.