United States v. Carrillo-Monjez

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. 05-40955 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOEL CARRILLO-MONJEZ, also known as Jorge Campos, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-17-1 -------------------- Before STEWART, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* Joel Carrillo-Monjez (Carrillo) appeals the sentence he received for illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326. Carrillo argues that the district court misapplied the Sentencing Guidelines by characterizing his state felony conviction for possession of cocaine as an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C). Carrillo’s argument is unavailing in light of circuit precedent. See United States v. Hinojosa-Lopez, 130 F.3d * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40955 -2- 691, 693-94 (5th Cir. 1997). Carrillo argues that this circuit’s precedent is inconsistent with Jerome v. United States, 318 U.S. 101 (1943). Jerome, however, preceded Hinojosa-Lopez; this court is bound by the precedent of previous panels absent “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). Carrillo also challenges the constitutionality of § 1326(b) in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Carrillo’s constitutional challenge is foreclosed by Almendarez- Torres v. United States, 523 U.S. 224, 235 (1998). Although Carrillo argues that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi, 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). Carrillo 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. AFFIRMED.