United States v. Torres

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. 06-20015
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE VICTOR TORRES, also known as
Jose Victor Torres-Valles, also known as
Jose Victor Torres-Baez, also known as
Heriberto Ochoa-Gomez, also known as
Jose Feliciano Perez-Mesa,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-127-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jose Victor Torres appeals the sentence imposed following
his guilty-plea conviction for being found unlawfully in the
United States after deportation, in violation of 8 U.S.C. § 1326.
Torres argues that the district court misapplied the Sentencing
Guidelines by characterizing his state felony convictions for
possession of a controlled substance as aggravated felonies for
purposes of U.S.S.G. § 2L1.2(b)(1)(C). Torres’s argument is
*
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this opinion should not be published and is not precedent except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. 06-20015
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unavailing in light of circuit precedent. See United States v.
Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Torres
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).
Torres also challenges the constitutionality of § 1326(b) in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The
Government argues that Torres lacks standing to bring a facial
challenge to the constitutionality of § 1326(b).
Because Torres may be entitled to a lesser sentence if his
constitutional challenge were successful, he has standing. See
Henderson v. Stalder, 287 F.3d 374, 380 (5th Cir. 2002). Torres
cannot succeed on his constitutional challenge, however, because
his argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Torres 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). Torres properly concedes that his
argument is foreclosed in light of Almendarez-Torres and circuit
No. 06-20015
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precedent, but he raises it here to preserve it for further
review.
AFFIRMED.