USA v. Andino-Rodriguez

Filing 920060713

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 05-11096 Conference Calendar

F I L E D
July 13, 2006 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELIO DE JESUS ANDINO-RODRIGUEZ, also known as Marcus Pedro Cabrera, also known as Miguel Saavedra, Defendant-Appellant. -------------------Appeal from the United States District Court for the Northern District of Texas USDC No. 1:05-CR-9-ALL -------------------Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Elio De Jesus Andino-Rodriguez 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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