USA v. Hernandez-Guerra

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 07-51364 Conference Calendar June 4, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. JUAN IGNACIO HERNANDEZ-GUERRA Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-932-ALL Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Juan Ignacio HernandezGuerra 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. PinedaArrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51364 The Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. 2