United States v. Benitez-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that this opinion should not be published and is not precedent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
November 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50307
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO BENITEZ-RODRIGUEZ, also known as Alfonso Rodriguez-
Benitez, also known as Valentin Benitez-Rodriguez, also known as
Onesimo Benitz, also known as Samuel Benitez Noblez, also known
as Valentine Benitez, also known as Onesimo Ponce,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CR-249-ALL
--------------------
Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Alfonso Benitez-
Rodriguez raises arguments that are foreclosed by United States
v. Scroggins, 411 F.3d 572, 576-77 (5th Cir. 2005), which held
that the Due Process Clause does not bar the application of
Justice Breyer’s remedy opinion in United States v. Booker, 125
S. Ct. 738 (2005), when resentencing defendants in light of

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No. 05-50307
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Booker, and by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998), which held that a prior conviction is a sentencing
factor under 8 U.S.C. § 1326(b)(2) 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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