USA v. Hernandez-Guerrero

Filing 920080305

Opinion

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-51274 Conference Calendar March 5, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ARTURO HERNANDEZ-GUERRERO, also known as Francisco Robles-Sanchez Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-1636-ALL Before KING, STEWART, and PRADO, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Arturo Hernandez-Guerrero 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. United States v. Pineda- Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * No. 07-51274 The judgment of the district court is AFFIRMED. The Government's motion for summary affirmance, which relies on inapposite authority, is DENIED. 2

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