USA v. Moreno-Velasquez, No. 06-41285 (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 May 2, 2007 Charles R. Fulbruge III Clerk No. 06-41285 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARMANDO MORENO-VELASQUEZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:06-CR-463-ALL -------------------Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Armando MorenoVelasquez (Moreno) preserves for further review his contention that his sentence is unreasonable because this court s postBooker** rulings have effectively reinstated the mandatory Sentencing Guideline regime condemned in Booker. Moreno concedes that his argument is foreclosed by United States v. Mares, 402 F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005), and its progeny, which have outlined this court s methodology for * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ** United States v. Booker, 543 U.S. 220 (2005). No. 06-41285 -2reviewing sentences for reasonableness. Moreno also 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.

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