                                                       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. 05-41626
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALFREDO PEREZ-MONTERO, also known as Jose Luis Alfredo,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-173-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Alfredo Perez-Montero appeals following his guilty-plea

conviction for being found unlawfully in the United States after

deportation, in violation of 8 U.S.C. § 1326.    Perez-Montero

argues that the district court misapplied the Sentencing

Guidelines by characterizing his state felony conviction for

possession of cocaine as an “aggravated felony” for purposes of

U.S.S.G. § 2L1.2(b)(1)(C).   Perez-Montero’s argument is

unavailing in light of circuit precedent.     See United States v.

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

     *
       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this opinion should not be published and is not precedent except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. 05-41626
                                -2-

Montero 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).

     Perez-Montero also challenges the constitutionality of

§ 1326(b) in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   Perez-Montero’s constitutional challenge is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Perez-Montero 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).   Perez-Montero 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.
