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. 05-41116
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS REYES-OLVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-288-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jesus Reyes-Olvera (Reyes) appeals the 24-month sentence he
received upon his guilty-plea conviction of illegal reentry by an
alien. Reyes contends that the district court erred 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). Relief on this issue is not available
in light of circuit precedent. See United States v.
Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Reyes
argues that this circuit’s precedent is inconsistent with Jerome
*
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this opinion should not be published and is not precedent except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. 05-41116
-2-
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).
Reyes also makes a constitutional challenge to 8 U.S.C.
§ 1326(b), but it is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Although Reyes 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). Reyes
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.
The judgment of the district court is AFFIRMED.