United States v. Esquivel-Cantera ( 2006 )

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. 06-40558
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANGEL ESQUIVEL-CANTERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-1005-ALL
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Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Jose Angel
Esquivel-Cantera raises arguments that are foreclosed by United
States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir.), cert.
denied, 2006 U.S. LEXIS 6189 (U.S. Oct. 2, 2006)(No. 06-5473),
and 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, and by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C.
*
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this opinion should not be published and is not precedent except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. 06-40558
-2-
§ 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.