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. 05-41328
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONEL FLORES-HUERTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-399-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Leonel Flores-Huerta (Flores) appeals following his guilty
plea to a charge of illegally reentering the United States after
deportation, in violation of 8 U.S.C. § 1326. Flores argues, for
the first time on appeal, 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). Flores’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this opinion should not be published and is not precedent except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. 05-41328
-2-
Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Flores
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).
Flores also challenges for the first time on appeal the
constitutionality of § 1326(b) in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Flores’s constitutional challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Flores 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). Flores 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.