United States v. Natividad-Hernandez

* 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this opinion should not be published and is not precedent except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
May 2, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-11144
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER NATIVIDAD-HERNANDEZ, also known as Noe
Hernandez-Lopez, also known as Robert Anthony Escobedo,
also known as Joe Hernandez-Lopez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:06-CR-39-ALL
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Before HIGGINBOTHAM, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Javier Natividad-
Hernandez 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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