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. 06-40126
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FILIBERTO OCHOA-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-543-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Filiberto Ochoa-Perez appeals following his guilty-plea
conviction for being found unlawfully in the United States after
deportation, in violation of 8 U.S.C. § 1326. Ochoa-Perez 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). Ochoa-Perez’s argument is unavailing in light
of circuit precedent. See United States v. Hinojosa-Lopez, 130
F.3d 691, 693-94 (5th Cir. 1997). Ochoa-Perez argues that this
*
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this opinion should not be published and is not precedent except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. 06-40126
-2-
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).
Ochoa-Perez also challenges the constitutionality of
§ 1326(b) in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Ochoa-Perez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ochoa-Perez 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). Ochoa-Perez 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.