United States v. Zagal-Meraz ( 2006 )

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. 05-41467
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME ZAGAL-MERAZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-381-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jaime Zagal-Meraz (Zagal) appeals his conviction and
sentence for illegal reentry. Zagal contends that his Minnesota
conviction for simple possession of a controlled substance is a
misdemeanor under federal law and should not have been treated as
an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C) and that
8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Zagal’s § 2L1.2(b)(1)(C) argument is unavailing in light of
our precedent. See United States v. Rivera, 265 F.3d 310, 312-13
*
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this opinion should not be published and is not precedent except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. 05-41467
-2-
(5th Cir. 2001); United States v. Hinojosa-Lopez, 130 F.3d 691,
693-94 (5th Cir. 1997). Zagal argues that our precedent is
inconsistent with Jerome v. United States, 318 U.S. 101 (1943).
Having preceded Hinojosa-Lopez, however, 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).
Zagal’s constitutional challenge to § 1326(b) is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Zagal 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). Zagal
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.