United States v. Caballero-Valdivia ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-51263
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR JAVIER CABALLERO-VALDIVIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:05-CR-313-ALL
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Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Oscar Javier
Caballero-Valdivia 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that this opinion should not be published and is not precedent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.