United States v. Padilla-Gomez

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
No. 05-41468 Clerk
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS PADILLA-GOMEZ, also known as Jesus Padilla,
also known as Armando Martinez-Vasquez,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-409-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Jesus Padilla-Gomez (Padilla) appeals the sentence he

received for illegally reentering the United States after

deportation, in violation of 8 U.S.C. § 1326. Padilla argues

that the district court misapplied the Sentencing Guidelines by

characterizing each of his prior state felony convictions for

possession of controlled substances as “aggravated felonies” for

purposes of U.S.S.G. § 2L1.2(b)(1)(C). Padilla’s argument is

*
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this opinion should not be published and is not precedent except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. 05-41468
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unavailing in light of circuit precedent. See United States v.

Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Padilla

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).

Padilla also challenges the constitutionality of § 1326(b)

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Padilla’s constitutional challenge is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998). Although

Padilla argues 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). Padilla

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.