USA v. Levario-Hermosillo, No. 07-51041 (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. 07-51041 Conference Calendar January 30, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. ROGELIO LEVARIO-HERMOSILLO, also known as Albino Tarango-Nieto Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-780-ALL Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Rogelio Levario-Hermosillo 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. Pineda- Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51041 7, 2008) (No. 07-6202). The Government s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. 2

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