United States v. Diaz-Rodriguez

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 7, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41087
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FAUSTINO DIAZ-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-125-ALL
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Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Faustino Diaz-
Rodriguez raises arguments that are foreclosed by United States
v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir. 2005), cert.
denied, 126 S. Ct. 1398 (2006), which held that a Texas
conviction for burglary of a habitation was equivalent to
burglary of a dwelling and therefore was a crime of violence
under U.S.S.G. § 2L1.2, and by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C.
§ 1326(b)(2) is a penalty provision and not a separate criminal

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No. 06-41087
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offense. The Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.

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