USA v. Rivera-Alvarez

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. 06-40278 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELIAS RIVERA-ALVAREZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 2:05-CR-459 -------------------Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Elias Rivera-Alvarez appeals from his guilty plea conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326. Rivera-Alvarez argues that the

district court misapplied the Sentencing Guidelines 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). Rivera-Alvarez's argument is See United States v. Rivera-

unavailing in light of circuit precedent.

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

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40278 -2Alvarez 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). Rivera-Alvarez requests that this case be held pending a decision in United States v. Toledo-Flores, 149 F. App'x 241 (5th Cir. 2005), cert. granted, 126 S. Ct. 1652 (2006). The grant of

certiorari does not alter the authority of this court's decisions; thus, this court continues to follow its precedent even when the Supreme Court grants certiorari on an issue. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986). Rivera-Alvarez's argument is without merit. Rivera-Alvarez also argues that the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). His constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Rivera-Alvarez 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). Rivera-Alvarez properly concedes that

No. 06-40278 -3his argument is foreclosed by Almendarez-Torres and circuit precedent, but he raises it here solely to preserve it for further review. Accordingly, the judgment of the district court is AFFIRMED.