                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     March 17, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 05-40020
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

               MARGARITO PECENO-MONTANEZ, also known as
                       Margarito Piceno-Montanez,

                                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 5:04-CR-1414-ALL
                         --------------------

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     Margarito     Peceno-Montanez     (Peceno)   appeals    the    sentence

imposed following his guilty-plea conviction of reentry of a

deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2).             The

district court sentenced Peceno to 20 months of imprisonment, based

in part on a prior aggravated felony conviction.

     Peceno contends that his sentence is illegal under United

States v. Booker, 125 S. Ct. 738 (2005), because it was imposed



     *
            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opinion should not be published and is not precedent except under the limited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.
pursuant to a mandatory application of the federal sentencing

guidelines.   Peceno thus alleges a “Fanfan” error.              See United

States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).                In the

district court, Peceno objected to his sentence under Blakely v.

Washington, 542 U.S. 296 (2004), and the Government concedes that

the issue is preserved and that it is subject to review for

harmless error.

     The Government has not carried its burden of showing beyond a

reasonable doubt that the district court’s error did not affect

Peceno’s sentence.    See Walters, 418 F.3d at 464; United States v.

Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005). We therefore vacate

the sentence and remand for resentencing in accordance with Booker.

See Walters, 418 F.3d at 464; Pineiro, 410 F.3d at 285-86.

     Peceno also argues that the district court erred when it

characterized his 2003 Texas felony conviction of simple possession

of a controlled substance as an aggravated felony and enhanced his

offense level by eight levels under U.S.S.G. § 2L1.2(b)(1)(C).             In

United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.

1997), this court held that a state conviction is an “aggravated

felony”   pursuant   to   U.S.S.G.    §   2L1.2(b)   if   the   offense   was

punishable under the Controlled Substances Act and a felony under

applicable state law.      Hinojosa-Lopez, 130 F.3d at 693.          Peceno

concedes that his conviction of simple possession of rock cocaine

was a felony under Texas law.        Also, the Controlled Substances Act

criminalizes possession of a controlled substance.                21 U.S.C.

                                      2
§ 844(a).        Peceno’s prior conviction therefore is an aggravated

felony that warrants the U.S.S.G. § 2L1.2(b)(1)(C) eight-level

offense level increase.         Hinojosa-Lopez, 130 F.3d at 694; see also

United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001).

      Peceno recognizes this court’s prior decisions, but he argues

that this circuit’s precedent is inconsistent with the Supreme

Court’s analysis set forth in Jerome v. United States, 318 U.S. 101

(1943).    Jerome did not involve interpretation of the Guidelines.

Also, Jerome, a 1943 decision, is not “an intervening Supreme Court

case” that       explicitly    or   implicitly        overruled      Hinojosa-Lopez.

Thus,    this    court    is   bound    by       Hinojosa-Lopez,      see    Martin    v.

Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001), and Jerome does

not     affect    the     binding   precedential         value       of     Rivera    and

Hinojosa-Lopez.

      Peceno also argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b) are unconstitutional.                         Peceno’s

constitutional          challenge      to    §     1326(b)     is    foreclosed       by

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

Although Peceno 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

(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, 126 S. Ct.

298   (2005).       Peceno     properly      concedes    that       his   argument    is

                                             3
foreclosed in light of Almendarez-Torres and circuit precedent, but

he raises it here to preserve it for further review.

     Accordingly, the conviction is AFFIRMED. Peceno’s sentence is

VACATED, and the case is REMANDED for resentencing.




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