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. 05-41254
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ARGUETA-HERNANDEZ,
also known as Jose Saul Hernandez-Argueta,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-346-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Argueta-Hernandez (Argueta) appeals following his
guilty plea to a charge of illegally reentering the United States
after deportation, in violation of 8 U.S.C. § 1326. Argueta
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). Argueta’s argument is unavailing in
light of circuit precedent. See United States v. Hinojosa-Lopez,
*
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this opinion should not be published and is not precedent except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. 05-41254
-2-
130 F.3d 691, 693-94 (5th Cir. 1997). Argueta 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).
Argueta also challenges the constitutionality of § 1326(b)
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Argueta’s constitutional challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although
Argueta contends 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). Argueta
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.