USA v. Sarabia-Pichardo, No. 07-50748 (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 FILED No. 07-50748 Conference Calendar November 8, 2007 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. JUAN SARABIA-PICHARDO Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-47-ALL Before KING, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Juan Sarabia-Pichardo 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. See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). The * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50748 Government s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. 2

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