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. 06-20071
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL PENALOZA-HERNANDEZ, also known as Miguel Hernandez, also
known as Miguel Hernandez-Rodriguez, also known as Miguel
Penalose Hernandez, also known as Miguel Angel Penaloza-
Hernandez, also known as Juan Angel Penaloza-Hernandez, also
known as Miguel Angel Hernandez, also known as Miguel Penalosa-
Hernandez, also known as Miguel Angele Hernandez, also known as
Miguel Penaloza Hernandez, also known as Jaime Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-261-1
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Miguel Penaloza-Hernandez appeals following his guilty-plea
conviction for being found unlawfully in the United States after
deportation in violation of 8 U.S.C. § 1326. Penaloza-Hernandez
argues that the district court misapplied the Sentencing
Guidelines by characterizing a state felony conviction for
possession of a controlled substance as an “aggravated felony”
*
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this opinion should not be published and is not precedent except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. 06-20071
-2-
for purposes of U.S.S.G. § 2L1.2(b)(1)(C). Penaloza-Hernandez’s
argument is unavailing in light of circuit precedent. See United
States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).
Penaloza-Hernandez 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, Penaloza-Hernandez also
challenges the constitutionality of § 1326(b) in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Penaloza-
Hernandez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Penaloza-Hernandez 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). Penaloza-Hernandez 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.