United States v. Torres

Opinion

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.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:05-CR-127-ALL --------------------

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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 -3-

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

review.

AFFIRMED.