USA v. Ortega-Ayala

Filing 920080709

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. 08-50085 Conference Calendar July 9, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. MARIO ORTEGA-AYALA Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-2216-ALL Before JOLLY, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Mario Ortega-Ayala 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-50085 The Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. 2

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