United States v. Ramirez-Alvarez ( 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. 06-40115
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS RAMIREZ-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-686-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jesus Ramirez-Alvarez appeals his 35-month sentence imposed
following his guilty plea to a charge of illegally reentering the
United States after deportation, in violation of 8 U.S.C. § 1326.
Ramirez-Alvarez argues that the district court erred by
characterizing his state felony conviction for possession of
marijuana as an aggravated felony for purposes of U.S.S.G.
§ 2L1.2(b)(1)(C). Ramirez-Alvarez’s argument is unavailing in
light of circuit precedent. See United States v. Hinojosa-Lopez,
130 F.3d 691, 693-94 (5th Cir. 1997). Ramirez-Alvarez argues
*
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this opinion should not be published and is not precedent except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. 06-40115
-2-
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).
Ramirez-Alvarez also challenges the constitutionality of
§ 1326(b) in light of Apprendi v. New Jersey, 530 U.S. 466(2000). Ramirez-Alvarez’s constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ramirez-Alvarez 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). Ramirez-Alvarez 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.