United States v. Diaz-Peralta

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 7, 2007

Charles R. Fulbruge III
Clerk
No. 06-50504
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE DIAZ-PERALTA, also known as Jose Peralta-Diaz,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-2648-ALL
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Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Jose Diaz-Peralta

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this opinion should not be published and is not precedent except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.