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* 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this opinion should not be published and is not precedent except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
October 5, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50435
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO LOPEZ-MENDOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-2041-ALL
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Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Gilberto Lopez-
Mendoza raises arguments that are foreclosed 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 offense. The Government’s motion for summary affirmance
is GRANTED, and the judgment of the district court is AFFIRMED.
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