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. 05-40889
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN RODRIGUEZ-CUEVAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-98-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Ruben Rodriguez-Cuevas (Rodriguez) appeals his guilty plea
to a charge of illegally reentering the United States after
deportation, in violation of 8 U.S.C. § 1326. Rodriguez argues
that the district court misapplied the Sentencing Guidelines by
erroneously characterizing his state felony conviction for
possession of methamphetamine as an “aggravated felony” for
purposes of U.S.S.G. § 2L1.2(b)(1). Rodriguez’s argument is
unavailing in light of circuit precedent. See United States v.
*
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this opinion should not be published and is not precedent except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. 05-40889
-2-
Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002); United
States v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001); United
States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).
Rodriguez 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).
Rodriguez also challenges the constitutionality of 8 U.S.C.
§ 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rodriguez 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). Rodriguez concedes that his
argument is foreclosed by Almendarez-Torres and circuit
precedent, but he raises it here solely to preserve it for
further review.
AFFIRMED.