                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 25, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-40126
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

FILIBERTO OCHOA-PEREZ,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:05-CR-543-ALL
                      --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Filiberto Ochoa-Perez appeals following his guilty-plea

conviction for being found unlawfully in the United States after

deportation, in violation of 8 U.S.C. § 1326.   Ochoa-Perez 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).   Ochoa-Perez’s argument is unavailing in light

of circuit precedent.    See United States v. Hinojosa-Lopez, 130

F.3d 691, 693-94 (5th Cir. 1997).   Ochoa-Perez 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this opinion should not be published and is not precedent except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. 06-40126
                                -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).

     Ochoa-Perez also challenges the constitutionality of

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

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

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

Although Ochoa-Perez 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).   Ochoa-Perez 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.
