Not overruled or negatively treated on appealinfoCoverage
United States Court of Appeals, Fifth CircuitDec 5, 2007
256 Fed. Appx. 738 (5th Cir. 2007)

No. 07-50616. Conference Calendar.

December 5, 2007.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Luis Gutierrez, El Paso, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 3:07-CR-06-1.

Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.

Appealing the Judgment in a Criminal Case, Mario Alonso Umanzor-Pleitez 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. United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied ___ U.S. ___, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008). The Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.

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