United States v. Guardiola-Perez

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED October 3, 2007 No. 07-10300 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. JACINTO GUARDIOLA-PEREZ Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:06-CR-265-1 Before JOLLY, DAVIS, and WIENER, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Jacinto Guardiola-Perez 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. United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10280 Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. 2