USA v. Rodriguez-Diaz, No. 08-50287 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-50287 Conference Calendar October 8, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. FRANKLIN ALEXANDER RODRIGUEZ-DIAZ Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:07-CR-632-ALL Before JOLLY, BARKSDALE, and HAYNES, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Franklin Alexander Rodriguez-Diaz 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). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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