U.S. v. MEDINA-REYES, 272 Fed.Appx. 367 (5th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee v. Erasmo MEDINA-REYES, Defendant-Appellant.

No. 07-41062 Conference Calendar.United States Court of Appeals, Fifth Circuit.
April 2, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 7:07-CR-509-1.

Before DAVIS, SMITH, and SOUTHWICK, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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, Erasmo Medina-Reyes raises arguments that are foreclosed b AlmendarezTorres 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. United States v. Pineda-Ar-

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rellano, 492 F,3d 624, 625 (5th Cir. 2007) cert. denied, ___ U.S. ___, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008). The appellant’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.