United States Court of Appeals, Fifth CircuitJun 6, 2007
230 Fed. Appx. 432 (5th Cir. 2007)

No. 06-41663 Conference Calendar.

June 6, 2007.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 5:06-CR-715-1.

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

Appealing the Judgment in a Criminal Case, Adolfo Rico-Rico 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. The appellant's motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.