UNITED STATES of America, Plaintiff-Appellee, v. Eleazar LOZA-HERNANDEZ, also known as Nabor Loza-Hernandez, Defendant-Appellant.
No. 05-51562
Conference Calendar.
United States Court of Appeals, Fifth Circuit.
Sept. 8, 2006.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
M. Carolyn Fuentes, Federal Public Defender’s Office Western District of Texas, San Antonio, TX, for Defendant-Appellant.
Before KING, GARWOOD, and JOLLY, Circuit Judges.
PER CURIAM:
Appealing the Judgment in a Criminal Case, Eleazar Loza-Hernandez 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. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.