United States v. Zagal-Meraz

203 F. App'x 598

Opinion

PER CURIAM: *

Jaime Zagal-Meraz (Zagal) appeals his conviction and sentence for illegal reentry. Zagal contends that his Minnesota conviction for simple possession of a controlled substance is a misdemeanor under federal law and should not have been treated as an “aggravated felony” under U.S.S.G. § 2L1.2(b)(l)(C) and that 8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Zagal’s § 2L1.2(b)(l)(C) argument is unavailing in light of our precedent. See 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). Zagal argues that our precedent is inconsistent with Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640 (1943). Having preceded HinojosaLopez, however, 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).

Zagal’s constitutional challenge to § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Athough Zagal 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, - U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Zagal 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.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.