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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-845-ALL
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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this opinion should not be published and is not precedent except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.