U.S. v. Ortiz-Benavides

Full title: UNITED STATES of America, Plaintiff-Appellee v. Pedro ORTIZ-BENAVIDES…

Court: United States Court of Appeals, Fifth Circuit

Date published: Sep 6, 2007

239 F. App'x 910 (5th Cir. 2007)

Opinion

No. 06-51699 Conference Calendar.

September 6, 2007.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Judy Fulmer Madewell, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Appeals from the United States District Court for the Western District of Texas, USDC No. 5:06-CR-292-ALL.

Before DeMOSS, DENNIS, and OWEN, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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, Pedro Ortiz-Benavides 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. See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). The Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.