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this opinion should not be published and is not precedent except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
- 2 -
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.