                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 11, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-41400
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

EVERARDO ROSENBAUM-ALANIS,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:05-CR-374-ALL
                        --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Everardo Rosenbaum-Alanis (Rosenbaum) pleaded guilty and was

convicted of illegal reentry after deportation.   He was sentenced

to 18 months of imprisonment and three years of supervised

release.

     Rosenbaum contends that the district court erred 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.   Relief on this issue is precluded.     See United


     *
       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this opinion should not be published and is not precedent except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. 05-41400
                                -2-

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

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

Rosenbaum 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).

     Rosenbaum also asserts that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.

Rosenbaum’s constitutional challenge is foreclosed by

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

Although Rosenbaum 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).   Rosenbaum 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.

     The judgment of the district court is AFFIRMED.
