United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 06-40127
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CONTRERAS-JIMENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-587-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Jose Contreras-Jimenez (Contreras) appeals following his
guilty-plea conviction on one count of illegally reentering the
United States after deportation, in violation of 8 U.S.C. § 1326.
Contreras argues that the district court misapplied the
Sentencing Guidelines 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).
Contreras’s argument is unavailing in light of circuit precedent.
*
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this opinion should not be published and is not precedent except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. 06-40127
-2-
See United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th
Cir. 1997). Contreras 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).
For the first time on appeal, Contreras challenges the
constitutionality of § 1326(b) in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Contreras’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Contreras 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). Contreras 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.