United States v. Rivas-Medina

176 F. App'x 432

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 11, 2006
• Docket: 05-40556
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006

Charles R. Fulbruge III Clerk No. 05-40556 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO RIVAS-MEDINA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2098-ALL --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Ricardo Rivas-Medina (Rivas) pleaded guilty to illegal

reentry after deportation and was sentenced to 37 months of

imprisonment and a three-year term of supervised release.

Rivas contends for the first time on appeal that the

district court erred when it characterized his 2001 Texas felony

conviction of simple possession of a controlled substance as an

aggravated felony and enhanced his offense level by eight levels

under U.S.S.G. § 2L1.2(b)(1)(C). In United States v.

Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997), this court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40556 -2-

held that a state conviction is an “aggravated felony” pursuant

to U.S.S.G. § 2L1.2(b) if the offense was punishable under the

Controlled Substances Act (CSA) and a felony under applicable

state law. Hinojosa-Lopez, 130 F.3d at 693. Rivas concedes that

his simple-possession conviction was a felony under Texas law.

Also, the CSA criminalizes possession of a controlled substance.

21 U.S.C. § 844(a). Rivas’s prior conviction therefore is an

aggravated felony that warrants the U.S.S.G. § 2L1.2(b)(1)(C)

eight-level offense level increase. See Hinojosa-Lopez, 130 F.3d

at 694; see also United States v. Rivera, 265 F.3d 310, 312-13

(5th Cir. 2001).

Rivas recognizes this court’s prior decisions, but he argues

that this circuit’s precedent is inconsistent with the Supreme

Court’s analysis set forth in Jerome v. United States, 318 U.S.

101 (1943). Jerome did not involve interpretation of the

Guidelines. Also, Jerome, a 1943 decision, is not “an

intervening Supreme Court case” that explicitly or implicitly

overruled Hinojosa-Lopez. Thus, this court is bound by Hinojosa-

Lopez, see Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir.

2001), and Jerome does not affect the binding precedential value

of Rivera and Hinojosa-Lopez.

Rivas also argues for the first time on appeal that the

district court erred by ordering him to cooperate in the

collection of a DNA sample as a condition of supervised release.

Rivas’s claim is not ripe for review on direct appeal. See No. 05-40556 -3-

United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir.

2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662).

The claim is dismissed.

Additionally, Rivas’s constitutional challenge to 8 U.S.C.

§ 1326(b) is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998). Although Rivas 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). Rivas

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.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.