United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-40897
c/w No. 05-41087
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE LOPEZ-RODRIGUEZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-160-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Felipe Lopez-Rodriguez (Lopez) appeals his conviction and
sentence for illegal reentry following deportation. Lopez
contends that his prior Texas conviction for simple possession of
a controlled substance is a misdemeanor under federal law and
should not have been treated as an “aggravated felony” under
U.S.S.G. § 2L1.2(b)(1)(C). Lopez’s argument is unavailing in
light of this court’s precedent. See United States v. Rivera,
*
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this opinion should not be published and is not precedent except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. 05-40897
c/w No. 05-41087
265 F.3d 310, 312-13 (5th Cir. 2001); United States v.
Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).
Lopez 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). This contention provides no ground for relief.
Lopez argues, in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), that his three-year term of supervised release
exceeds the statutory maximum sentence allowed for the 8 U.S.C.
§ 1326(a) offense charged in his indictment. He challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury.
Lopez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Lopez 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). Lopez
properly concedes that his argument is foreclosed in light of
No. 05-40897
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Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
The judgment of the district court is AFFIRMED.