USA v. Gutierrez-Barragan, No. 07-40602 (5th Cir. 2007)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-40602 Conference Calendar December 5, 2007 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. JOSE ANTONIO GUTIERREZ-BARRAGAN, also known as Jose Antonio Gutierrez, also known as Alfonso Guitterez, also known as Jose Antonio Barragan, also known as Antonio Campillo Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 3:06-CR-17-1 Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Jose Antonio GutierrezBarragan raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C. ยง 1326(b)(2) is a penalty provision and not a separate criminal offense. See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40602 28, 2007) (No. 07-6202). The appellant s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. 2

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