UNITED STATES of America, Plaintiff-Appellee, v. Hilario ANALCO-ANALCO, Defendant-Appellant, 185 F. App'x 384

PER CURIAM: Hilario Analco-Analco (Analco) appeals his sentence under 8 U.S.C. § 1326 for illegal reentry into the United States after deportation. Analco argues that the district court erred by characterizing his prior state felony conviction for simple possession of a controlled substance as an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C). Analco’s argument is unavailing in light of circuit precedent. See United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.1997). Analco argues that this circuit’s precedent is inconsistent with Jerome v.

United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640 (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). Analco argues that the “felony” and “aggravated felony” provisions of § 1326(

b) are unconstitutional. This challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Analco contends that 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, 276 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005).

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 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.