USA vs. Medallin-Herrera, (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
January 30, 2008
No. 07-50928
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JAVIER MEDALLIN-HERRERA, also known as Carmello Medallin
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-296-ALL
Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:* Appealing the Judgment in a Criminal Case, Javier Medallin-Herrera 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. United States v. Pineda- Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008) (No. 07-6202). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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