USA v. Tovar-Martinez

Filing 920070711

Opinion

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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 July 11, 2007 Charles R. Fulbruge III Clerk No. 07-40103 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE ERNESTO TOVAR-MARTINEZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 7:06-CR-863-1 -------------------Before JOLLY, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Jose Ernesto Tovar-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 appellant's motion for summary disposition 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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