United States v. Andrade-Mesa

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. 05-41464
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CARLOS ANDRADE-MESA,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-389-ALL
--------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Juan Carlos Andrade-Mesa (Andrade) appeals the 30-month

sentence he received upon his guilty-plea conviction of attempted

illegal reentry by an alien. Andrade 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(b)(1)(C). Relief on this issue

is unavailing in light of circuit precedent. See United States

v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Andrade

argues that this circuit’s precedent is inconsistent with Jerome

*
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this opinion should not be published and is not precedent except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. 05-41464
-2-

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).

Andrade also makes a constitutional challenge to 8 U.S.C.

§ 1326(b), but it is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998). Although Andrade 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). Andrade

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.