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. 05-41400
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVERARDO ROSENBAUM-ALANIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-374-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Everardo Rosenbaum-Alanis (Rosenbaum) pleaded guilty and was
convicted of illegal reentry after deportation. He was sentenced
to 18 months of imprisonment and three years of supervised
release.
Rosenbaum 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
*
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this opinion should not be published and is not precedent except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. 05-41400
-2-
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).
Rosenbaum 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).
Rosenbaum also asserts that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
Rosenbaum’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rosenbaum 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). Rosenbaum 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.