                                                       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. 05-41516
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ALVARO PRADO-ORTIZ,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-349-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Alvaro Prado-Ortiz (Prado) appeals the sentence he received

for illegally reentering the United States after deportation, in

violation of 8 U.S.C. § 1326.    Prado argues that the district

court misapplied the Sentencing Guidelines by characterizing

each of his prior state felony convictions for possession of

controlled substances as “aggravated felonies” for purposes of

U.S.S.G. § 2L1.2(b)(1)(C).    Prado’s argument is unavailing in

light of circuit precedent.     See United States v. Hinojosa-Lopez,

130 F.3d 691, 693-94 (5th Cir. 1997).    Prado argues that this

     *
       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this opinion should not be published and is not precedent except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. 05-41516
                                -2-

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).

     Prado also challenges the constitutionality of § 1326(b) in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000).   Prado’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).   Although Prado argues

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).   Prado 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.
