U.S. v. Morales-Agustine

Full title: UNITED STATES of America Plaintiff-Appellee v. Jesus Francisco…

Court: United States Court of Appeals, Fifth Circuit

Date published: Aug 8, 2007

235 F. App'x 280 (5th Cir. 2007)

Opinion

No. 06-41349, Conference Calendar.

August 8, 2007.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 5:04-CR-921.

Before DENNIS, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Appealing the Judgment in a Criminal Case, Jesus Francisco Morales-Agustine (Morales) argues that the enhancement provisions of 8 U.S.C. § 1326(b) are unconstitutional. To the extent his arguments may be raised in this appeal following remand, United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002), Morales's arguments 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. The appellant's motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.