United States v. Garcia-Lozano

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED JANUARY 26, 2007 IN THE UNITED STATES COURT OF APPEALS October 5, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 06-40472 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GILBERTO GARCIA-LOZANO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-1019-ALL --------------------

Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Gilberto Garcia-

Lozano 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; by United States v. Garcia-Mendez, 420 F.3d 454

(5th Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006), which held

that a Texas conviction for burglary of a habitation was

equivalent to burglary of a dwelling; and by United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40472 -2-

Carmichael, 343 F.3d 756, 761-62 (5th Cir. 2003), which held that

a challenge to the district court's order requiring the defendant

to cooperate in the collection of a DNA sample as a condition of

supervised release is not ripe for review on direct appeal. The

Government’s motion for summary affirmance is GRANTED.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.