United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40741
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AQUILEO AYALA-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2469-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Aquileo Ayala-Flores appeals from his guilty plea conviction
and sentence for illegal reentry of a deported alien. Ayala-
Flores argues that the district court misapplied the Sentencing
Guidelines 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(b)(1)(C). Ayala-Flores’s
argument is unavailing in light of circuit precedent. See United
States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).
*
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this opinion should not be published and is not precedent except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. 05-40741
-2-
Ayala-Flores also 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).
Ayala-Flores 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 Ayala-Flores 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). Ayala-Flores properly
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.