United States v. Montalvo-Gutierrez

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 No. 05-20892 Clerk Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MOISES MONTALVO-GUTIERREZ, also known as Moises Montalvo Gutierrez, also known as Moises Gutierrez, also known as Moises Perez Moreno,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:05-CR-209-ALL --------------------

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Moises Montalvo-

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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