U.S.A. v. Francisco

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Elido Ramon FRANCISCO…

Court: United States Court of Appeals, Fifth Circuit

Date published: May 2, 2007

235 F. App'x 206 (5th Cir. 2007)

Opinion

No. 06-50910, Conference Calendar.

May 2, 2007.

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

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

Appeal from the United States District Court for the Western District of Texas, USDC No. 3:05-CR-2720-1.

Before HIGGINBOTHAM, WIENER, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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, Elido Ramon Francisco 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. The Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.