United States v. Rodarte-Flores

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 5, 2007
No. 07-50258
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE MANUEL RODARTE-FLORES
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:06-CR-935-ALL
Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Jose Manuel Rodarte-Flores
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 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should not be published and is not precedent except under the limited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.