United States v. Montalvo-Gutierrez

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
No. 05-20892 Clerk
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOISES MONTALVO-GUTIERREZ, also known as Moises
Montalvo Gutierrez, also known as Moises Gutierrez,
also known as Moises Perez Moreno,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-209-ALL
--------------------
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Moises Montalvo-
Gutierrez 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that this opinion should not be published and is not precedent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.