USA v. Reyes-Olvera

Filing 920061024

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. 05-41116 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JESUS REYES-OLVERA, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:05-CR-288-ALL -------------------Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Jesus Reyes-Olvera (Reyes) appeals the 24-month sentence he received upon his guilty-plea conviction of illegal reentry by an alien. Reyes contends that the district court erred by

characterizing his state felony conviction for possession of a controlled substance as an "aggravated felony" for purposes of U.S.S.G. § 2L1.2(b)(1)(C). Relief on this issue is not available See United States v. Reyes

in light of circuit precedent.

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

argues that this circuit's precedent is inconsistent with Jerome 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41116 -2v. 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." United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999). Reyes also makes a constitutional challenge to 8 U.S.C. § 1326(b), but it is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Reyes contends that See

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, Reyes

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

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. The judgment of the district court is AFFIRMED.