United States v. Cervantes-Rodriguez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 13, 2006

Charles R. Fulbruge III Clerk No. 05-11080 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS ENRIQUE CERVANTES-RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:05-CR-59-ALL --------------------

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Luis Enrique

Cervantes-Rodriguez 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, and by United States v. Alonzo,

435 F.3d 551, 554 (5th Cir. 2006), which held that a sentence

within a properly calculated Guideline range is presumptively

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-11080 -2-

reasonable. The Government’s motion for summary affirmance is

GRANTED, and the judgment of the district court is AFFIRMED.