United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-21041
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD CALLE-VILLAREAL, also known as Edward Calle, also
known as Edward Alfonso Calle,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-193
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Edward Calle-Villareal appeals following his guilty plea to
a charge of illegally reentering the United States after
deportation, in violation of 8 U.S.C. § 1326. Calle-Villareal
argues that the district court erred by characterizing his state
felony conviction for simple possession of cocaine as an
aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C).
Calle-Villareal’s argument is unavailing in light of circuit
precedent. See United States v. Hinojosa-Lopez, 130 F.3d 691,
*
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this opinion should not be published and is not precedent except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. 05-21041
-2-
693-94 (5th Cir. 1997). Calle-Villareal 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).
Calle-Villareal 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). Calle-Villareal’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Calle-Villareal 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). Calle-Villareal 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.