USA v. Garcia-Lozano

Filing 920070126

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
REVISED JANUARY 26, 2007 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 5, 2006 Charles R. Fulbruge III Clerk No. 06-40472 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GILBERTO GARCIA-LOZANO, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-1019-ALL -------------------Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Gilberto GarciaLozano 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; by United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006), which held that a Texas conviction for burglary of a habitation was equivalent to burglary of a dwelling; and by United States v.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 06-40472 -2Carmichael, 343 F.3d 756, 761-62 (5th Cir. 2003), which held that a challenge to the district court's order requiring the defendant to cooperate in the collection of a DNA sample as a condition of supervised release is not ripe for review on direct appeal. Government's motion for summary affirmance is GRANTED. JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART. The