United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-51302
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICOLAS HERNANDEZ-ARZATE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-611-1
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Before KING, GARWOOD, and JOLLY, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Nicolas
Hernandez-Arzate 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that this opinion should not be published and is not precedent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.