USA v. Pena-Rodriguez, No. 07-50371 (5th Cir. 2007)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 07-50371 Conference Calendar UNITED STATES OF AMERICA FILED August 8, 2007 Charles R. Fulbruge III Clerk Plaintiff-Appellee v. EDUARDO PENA-RODRIGUEZ Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:06-CR-1921-ALL Before DENNIS, CLEMENT, and PRADO, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Eduardo Pena-Rodriguez 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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