United States v. Garcia-Lozano

* 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this opinion should not be published and is not precedent except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
REVISED JANUARY 26, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40472
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO GARCIA-LOZANO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-1019-ALL
--------------------
Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Gilberto Garcia-
Lozano 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; by United States v. Garcia-Mendez, 420 F.3d 454
(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 by United States v.

-- 1 of 2 --

No. 06-40472
-2-
Carmichael, 343 F.3d 756, 761-62 (5th Cir. 2003), which held that
a challenge to the district court's order requiring the defendant
to cooperate in the collection of a DNA sample as a condition of
supervised release is not ripe for review on direct appeal. The
Government’s motion for summary affirmance is GRANTED.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.

-- 2 of 2 --