USA v. Ochoa-Saldana

Filing 920080604

Opinion

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-40022 Conference Calendar June 4, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. RICARDO OCHOA-SALDANA Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:07-CR-970-ALL Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Ricardo Ochoa-Saldana 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40022 The appellant's motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. 2

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