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. 06-20067
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOE MONDRAGON-JIMENEZ, also known as
Noe Jiminez Mondragon, also known as
Noe Jimenez Mondragon, also known as
Noe Mondragon,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-325-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Noe Mondragon-Jimenez (Mondragon) appeals the sentence
imposed following his guilty-plea conviction for being unlawfully
present in the United States after deportation, in violation of
8 U.S.C. § 1326. Mondragon argues for the first time on appeal
that the district court misapplied the Sentencing Guidelines by
characterizing his state felony convictions for possession of a
controlled substance as aggravated felonies for purposes of
U.S.S.G. § 2L1.2(b)(1)(C). Mondragon’s argument is unavailing in
*
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this opinion should not be published and is not precedent except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. 06-20067
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light of circuit precedent. See United States v. Hinojosa-Lopez,
130 F.3d 691, 693-94 (5th Cir. 1997). Mondragon 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, Mondragon also challenges the
constitutionality of § 1326(b) in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). The Government argues that
Mondragon lacks standing to bring a facial challenge to the
constitutionality of § 1326(b).
Because Mondragon may be entitled to a lesser sentence if
his constitutional challenge were successful, he has standing.
See Henderson v. Stalder, 287 F.3d 374, 380 (5th Cir. 2002).
Mondragon cannot succeed on his constitutional challenge,
however, because his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998). Although Mondragon
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). Mondragon properly concedes that
his argument is foreclosed in light of Almendarez-Torres and
No. 06-20067
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circuit precedent, but he raises it here to preserve it for
further review.
AFFIRMED.