USA v. Provencio-Martinez

Filing 920070207


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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 7, 2007 Charles R. Fulbruge III Clerk No. 06-10867 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PRIMITIVO PROVENCIO-MARTINEZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Northern District of Texas USDC No. 4:06-CR-22-ALL -------------------Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Primitivo Provencio-Martinez 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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