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. 05-41519
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HILARIO ANALCO-ANALCO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-259-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Hilario Analco-Analco (Analco) appeals his sentence under
8 U.S.C. § 1326 for illegal reentry into the United States after
deportation. Analco argues that the district court erred by
characterizing his prior state felony conviction for simple
possession of a controlled substance as an “aggravated felony”
for purposes of U.S.S.G. § 2L1.2(b)(1)(C). Analco’s argument is
unavailing in light of circuit precedent. See United States v.
Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Analco
*
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this opinion should not be published and is not precedent except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. 05-41519
-2-
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).
Analco argues that the “felony” and “aggravated felony”
provisions of § 1326(b) are unconstitutional. This challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Analco 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). Analco 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.