United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-40556
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO RIVAS-MEDINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2098-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Ricardo Rivas-Medina (Rivas) pleaded guilty to illegal
reentry after deportation and was sentenced to 37 months of
imprisonment and a three-year term of supervised release.
Rivas contends for the first time on appeal that the
district court erred when it characterized his 2001 Texas felony
conviction of simple possession of a controlled substance as an
aggravated felony and enhanced his offense level by eight levels
under U.S.S.G. § 2L1.2(b)(1)(C). In United States v.
Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997), this court
*
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this opinion should not be published and is not precedent except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.
No. 05-40556
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held that a state conviction is an “aggravated felony” pursuant
to U.S.S.G. § 2L1.2(b) if the offense was punishable under the
Controlled Substances Act (CSA) and a felony under applicable
state law. Hinojosa-Lopez, 130 F.3d at 693. Rivas concedes that
his simple-possession conviction was a felony under Texas law.
Also, the CSA criminalizes possession of a controlled substance.
21 U.S.C. § 844(a). Rivas’s prior conviction therefore is an
aggravated felony that warrants the U.S.S.G. § 2L1.2(b)(1)(C)
eight-level offense level increase. See Hinojosa-Lopez, 130 F.3d
at 694; see also United States v. Rivera, 265 F.3d 310, 312-13
(5th Cir. 2001).
Rivas recognizes this court’s prior decisions, but he argues
that this circuit’s precedent is inconsistent with the Supreme
Court’s analysis set forth in Jerome v. United States, 318 U.S.
101 (1943). Jerome did not involve interpretation of the
Guidelines. Also, Jerome, a 1943 decision, is not “an
intervening Supreme Court case” that explicitly or implicitly
overruled Hinojosa-Lopez. Thus, this court is bound by Hinojosa-
Lopez, see Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir.
2001), and Jerome does not affect the binding precedential value
of Rivera and Hinojosa-Lopez.
Rivas also argues for the first time on appeal that the
district court erred by ordering him to cooperate in the
collection of a DNA sample as a condition of supervised release.
Rivas’s claim is not ripe for review on direct appeal. See
No. 05-40556
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United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir.
2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662).
The claim is dismissed.
Additionally, Rivas’s constitutional challenge to 8 U.S.C.
§ 1326(b) is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Rivas contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Rivas
properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.