United States v. Prado-Ortiz

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. 05-41516
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVARO PRADO-ORTIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-349-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Alvaro Prado-Ortiz (Prado) appeals the sentence he received
for illegally reentering the United States after deportation, in
violation of 8 U.S.C. § 1326. Prado argues that the district
court misapplied the Sentencing Guidelines by characterizing
each of his prior state felony convictions for possession of
controlled substances as “aggravated felonies” for purposes of
U.S.S.G. § 2L1.2(b)(1)(C). Prado’s argument is unavailing in
light of circuit precedent. See United States v. Hinojosa-Lopez,
130 F.3d 691, 693-94 (5th Cir. 1997). Prado argues that this
*
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this opinion should not be published and is not precedent except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. 05-41516
-2-
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).
Prado also challenges the constitutionality of § 1326(b) in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Prado’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Prado argues
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). Prado 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.