United States v. Andrade-Mesa , 185 F. App'x 383 ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  June 20, 2006
    Charles R. Fulbruge III
    Clerk
    No. 05-41464
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JUAN CARLOS ANDRADE-MESA,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 1:05-CR-389-ALL
    --------------------
    Before STEWART, DENNIS, and OWEN, Circuit Judges.
    PER CURIAM:*
    Juan Carlos Andrade-Mesa (Andrade) appeals the 30-month
    sentence he received upon his guilty-plea conviction of attempted
    illegal reentry by an alien.   Andrade contends that the district
    court erred 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).    Relief on this issue
    is unavailing in light of circuit precedent.    See United States
    v. Hinojosa-Lopez, 
    130 F.3d 691
    , 693-94 (5th Cir. 1997).       Andrade
    argues that this circuit’s precedent is inconsistent with Jerome
    *
    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    this opinion should not be published and is not precedent except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. 05-41464
    -2-
    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).
    Andrade also makes a constitutional challenge to 
    8 U.S.C. § 1326
    (b), but it is foreclosed by Almendarez-Torres v. United
    States, 
    523 U.S. 224
    , 235 (1998).   Although Andrade contends that
    Almendarez-Torres was incorrectly decided and that a majority of
    the Supreme Court would overrule Almendarez-Torres in light of
    Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), 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).   Andrade
    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.
    The judgment of the district court is AFFIRMED.