                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40741
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

AQUILEO AYALA-FLORES,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-2469-ALL
                       --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Aquileo Ayala-Flores appeals from his guilty plea conviction

and sentence for illegal reentry of a deported alien.      Ayala-

Flores argues that the district court misapplied the Sentencing

Guidelines by characterizing his state felony conviction for

possession of a controlled substance as an “aggravated felony”

for purposes of U.S.S.G. § 2L1.2(b)(1)(C).    Ayala-Flores’s

argument is unavailing in light of circuit precedent.      See United

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


     *
       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this opinion should not be published and is not precedent except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. 05-40741
                                -2-

Ayala-Flores also 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).

     Ayala-Flores also challenges the constitutionality of

8 U.S.C. § 1326(b).   His constitutional challenge is foreclosed

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

Although Ayala-Flores 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).   Ayala-Flores properly

concedes that his argument is foreclosed by Almendarez-Torres and

circuit precedent, but he raises it here solely to preserve it

for further review.

     AFFIRMED.
