United States v. Abarca-Ayala , 230 F. App'x 413 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 6, 2007
Charles R. Fulbruge III
Clerk
No. 06-50813
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ERNESTO ABARCA-AYALA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:05-CR-633-ALL
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Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Jose Ernesto
Abarca-Ayala raises arguments that are foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998), which held
that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a
separate criminal offense. 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this opinion should not be published and is not precedent except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.