United States v. Garcia

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 17, 2005

Charles R. Fulbruge III Clerk No. 05-50276 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR LUIS GARCIA, also known as Alvaro Duran-Lopez, also known as Jesus Renteria,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-1782-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Oscar Luis Garcia

raises arguments that are foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), which held that a prior

conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and

not a separate criminal offense, and by United States v. Mares,

402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005) (No. 04-9517), and its progeny, which held that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-50276 -2-

unpreserved claims based on United States v. Booker, 125 S. Ct.

738 (2005), are reviewed for plain error. The Government’s

motion for summary affirmance is GRANTED, and the judgment of the

district court is AFFIRMED.