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. 05-40747
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO MANUEL LUMBRERAS-LINARES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2475-1
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Rodolfo Manuel Lumbreras-Linares appeals his guilty-plea
conviction of being a previously deported alien found illegally
in the United States. Lumbreras-Linares contends that the
district court erred by characterizing his state felony
conviction for possession of a controlled substance as an
“aggravated felony” for purposes of U.S.S.G. § 2L1.2. Relief on
this issue is precluded. See United States v. Rivera, 265 F.3d
310, 312-13 (5th Cir. 2001); United States v. Hinojosa-Lopez, 130
*
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this opinion should not be published and is not precedent except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. 05-40747
-2-
F.3d 691, 693-94 (5th Cir. 1997). Lumbreras-Linares argues that
this circuit’s precedent is inconsistent with Jerome v. United
States, 318 U.S. 101 (1943). Having preceded Hinojosa-Lopez,
Jerome is not “an intervening Supreme Court case explicitly or
implicitly overruling that prior precedent.” See United States
v. Short, 181 F.3d 620, 624 (5th Cir. 1999).
Lumbreras-Linares’s constitutional challenge to 8 U.S.C.
§ 1326 is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Lumbreras-Linares 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). Lumbreras-
Linares 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. The judgment of the
district court is AFFIRMED.