United States v. Zagal-Meraz , 203 F. App'x 598 ( 2006 )


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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. 05-41467
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JAIME ZAGAL-MERAZ,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 7:05-CR-381-ALL
    --------------------
    Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
    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)(1)(C) and that
    
    8 U.S.C. § 1326
    (b)(1) & (2) are unconstitutional in light of
    Apprendi v. New Jersey, 
    530 U.S. 466
     (2000).
    Zagal’s § 2L1.2(b)(1)(C) argument is unavailing in light of
    our precedent.     See United States v. Rivera, 
    265 F.3d 310
    , 312-13
    *
    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    this opinion should not be published and is not precedent except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. 05-41467
    -2-
    (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
     (1943).
    Having preceded Hinojosa-Lopez, 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 (1998).
    Although 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, 
    126 S. Ct. 298
     (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.