U.S. v. BAT, 253 Fed.Appx. 430 (5th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee v. Luis Rafael BAT, also known as Luis Rafael Batres-Hernandez, Defendant-Appellant.

No. 07-50438 Conference Calendar.United States Court of Appeals, Fifth Circuit.
November 8, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Henry Joseph Bemporad, Federal Public Defender, Donna F. Coltharp, Federal Public Defender’s Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 2:06-CR-798-ALL.

Before KING, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:[*]

[*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Appealing the Judgment in a Criminal Case, Luis Rafael Bat raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.

Page 431

See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.