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
Clerk
No. 06-40351
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SOTERO ELENO BOTELLO-YALLEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-843
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Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Sotero Eleno
Botello-Yallez 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this opinion should not be published and is not precedent except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.