USA v. Espinoza, No. 08-50502 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 08-50502 Conference Calendar December 4, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. RUBEN ESPINOZA, JR Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:07-CR-262-1 Before GARWOOD, GARZA, and OWEN, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Ruben Espinoza, Jr., raises arguments that he concedes are foreclosed by United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), which held that Apprendi v. New Jersey, 530 U.S. 466 (2000) does not preclude the imposition of a mandatory minimum sentence under 21 U.S.C. § 841, provided that the sentence imposed does not exceed the statutory maximum sentence for the offense. See also United States v. Harper, 527 F.3d 396, 411 (5th Cir.) (except in the case of substantial assistance to 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-50502 Government or compliance with the safety valve criteria, sentencing courts, post United States v. Booker, 543 U.S. 220 (2005), lack discretion to depart below relevant statutory minimums), cert. denied, 129 S. Ct. 212 (2008). The Government s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. 2

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