USA v. Betancourt-Guillen, No. 06-40956 (5th Cir. 2007)

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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 7, 2007 Charles R. Fulbruge III Clerk No. 06-40956 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RAFAEL BETANCOURT-GUILLEN, also known as Miguel Cervantes, also known as Juan Jose Gonzalez, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-558-ALL -------------------Before KING, WIENER, and OWEN, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Rafael Betancourt-Guillen 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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