USA v. Perez-Montero, No. 05-41626 (5th Cir. 2006)
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The court issued a subsequent related opinion or order on May 15, 2007.
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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. 05-41626 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALFREDO PEREZ-MONTERO, also known as Jose Luis Alfredo, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-173-ALL -------------------Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Alfredo Perez-Montero appeals following his guilty-plea conviction for being found unlawfully in the United States after deportation, in violation of 8 U.S.C. § 1326. Perez-Montero argues that the district court misapplied the Sentencing Guidelines by characterizing his state felony conviction for possession of cocaine as an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C). Perez-Montero s argument is unavailing in light of circuit precedent. See United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). * Perez- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41626 -2Montero 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). Perez-Montero also challenges the constitutionality of § 1326(b) in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Perez-Montero s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Perez-Montero 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). Perez-Montero 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.
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