USA vs. Hernandez-Gamboa, (5th Cir. 2006)

Status: Not Published

Docket Number: 05-41708

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United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

October 5, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 05-41708

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN HERNANDEZ-GAMBOA, also known as Rogelio Cardenas-Garcia,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:05-CR-1305-ALL

Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.

PER CURIAM:* Appealing the Judgment in a Criminal Case, Juan Hernandez- Gamboa raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that 8U.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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.