United States v. Navarrete-Fierro

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 6, 2007

Charles R. Fulbruge III Clerk No. 06-11328 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE NAVARRETE-FIERRO, also known as Jose Luis Fierro, also known as Ricardo Navarro, also known as Jose Luis Navarrete,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 1:06-CR-23-1 --------------------

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Jose Navarrete-

Fierro (Navarrete) 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. Navarrete also raises arguments

that are foreclosed by United States v. Mejia-Huerta, 480 F.3d

713, 723 (5th Cir. 2007), petition for cert. filed, 75 U.S.L.W.

3585 (U.S. Apr. 18, 2007) (No. 06-1381), which held that the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-11328 -2-

district court is not required to provide notice prior to

sentencing of its sua sponte intention to impose a non-Guidelines

sentence. The Government’s motion for summary affirmance is

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