United States v. Jimenez-Esteban ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-41749
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLORENCIO JIMENEZ-ESTEBAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-317-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Florencio Jimenez-Esteban (Jimenez) appeals from his guilty
plea conviction and sentence for illegal reentry following
deportation in violation of 8 U.S.C. § 1326. Jimenez argues that
the district court misapplied the Sentencing Guidelines by
characterizing his state felony conviction for possession of a
controlled substance as an “aggravated felony” for purposes of
U.S.S.G. § 2L1.2(b)(1)(C). Jimenez’s argument is unavailing in
light of circuit precedent. See United States v. Hinojosa-Lopez,
130 F.3d 691, 693-94 (5th Cir. 1997). Jimenez also argues that
*
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this opinion should not be published and is not precedent except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. 05-41749
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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). Jimenez requests
that this case be held pending a decision in United States v.
Toledo-Flores, 149 F. App’x 241 (5th Cir. 2005), cert. granted,
126 S. Ct. 1652 (2006). The grant of certiorari does not alter
the authority of this court’s decisions; thus, this court
continues to follow its precedent even when the Supreme Court
grants certiorari on an issue. Wicker v. McCotter, 798 F.2d 155,
157-58 (5th Cir. 1986). Jimenez’s argument is without merit.
Jimenez also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Jimenez 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). Jimenez
properly concedes that his argument is foreclosed by
No. 05-41749
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Almendarez-Torres and circuit precedent, but he raises it here
solely to preserve it for further review.
Accordingly, the judgment of the district court is AFFIRMED.