Conference Calendar UNITED STATES OF AMERICA v. Jesus Francisco Morales-Agustine

* 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should not be published and is not precedent except under the limited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
August 8, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41349
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JESUS FRANCISCO MORALES-AGUSTINE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-921
Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Jesus Francisco Morales-
Agustine (Morales) argues that the enhancement provisions of 8 U.S.C. § 1326(b)
are unconstitutional. To the extent his arguments may be raised in this appeal
following remand, United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002),
Morales’s arguments 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 appellant's motion for summary

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No. 06-41349
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disposition is GRANTED, and the judgment of the district court is AFFIRMED.

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