United States v. Rodriguez-Cuevas

176 F. App'x 448

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. 05-40889 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUBEN RODRIGUEZ-CUEVAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-98-ALL --------------------

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

PER CURIAM:*

Ruben Rodriguez-Cuevas (Rodriguez) appeals his guilty plea

to a charge of illegally reentering the United States after

deportation, in violation of 8 U.S.C. § 1326. Rodriguez argues

that the district court misapplied the Sentencing Guidelines by

erroneously characterizing his state felony conviction for

possession of methamphetamine as an “aggravated felony” for

purposes of U.S.S.G. § 2L1.2(b)(1). Rodriguez’s argument is

unavailing in light of circuit precedent. See United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40889 -2-

Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002); United

States v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001); United

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

Rodriguez 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).

Rodriguez also challenges the constitutionality of 8 U.S.C.

§ 1326(b). His constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Rodriguez 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). Rodriguez concedes that his

argument is foreclosed by Almendarez-Torres and circuit

precedent, but he raises it here solely to preserve it for

further review.

AFFIRMED.