United States v. Mohammed

205 F. App'x 259

Opinion

PER CURIAM: *

Appealing the Judgment in a Criminal Case, Adebayo Mohammed raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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. Stone, 306 F.3d 241, 243 (5th Cir.2002), which held that no Sixth Amendment violation arises when a district court considers the nature of a prior conviction rather than presenting the question to a jury in sentencing the defendant under the Armed Career Criminal Act, and by United States v. Austin, 432 F.3d 598, 599-600 (5th Cir.2005), which held that the application of the remedial opinion of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to a sentencing hearing where the underlying offense was committed pre Booker did not violate constitutional due process or ex post facto requirements. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.