USA v. Garza-Reyna, No. 05-20916 (5th Cir. 2006)

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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. 05-20916 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CELEDINO GARZA-REYNA, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 4:05-CR-165-ALL -------------------Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Celedino GarzaReyna 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, and by United States v. Lopez-Ortiz, 313 F.3d 225, 229-31 (5th Cir. 2002), which held that an immigration judge's failure to inform an alien of his eligibility for discretionary waiver of removal at his removal proceeding did not render the proceeding fundamentally unfair. * The Government s 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-20916 -2motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.

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