United States v. Ovalle-Castillo

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 5, 2006

Charles R. Fulbruge III No. 06-40379 Clerk Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCO ANTONIO OVALLE-CASTILLO, also known as Francisco Javier Avilla-Valencia,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-845-ALL --------------------

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

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Marco Antonio

Ovalle-Castillo 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, and 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. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40379 -2-

Government’s motion for summary affirmance is GRANTED, and the

judgment of the district court is AFFIRMED.