                                                       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. 05-40897
                            c/w No. 05-41087
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FELIPE LOPEZ-RODRIGUEZ,

                                      Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:05-CR-160-ALL
                       --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Felipe Lopez-Rodriguez (Lopez) appeals his conviction and

sentence for illegal reentry following deportation.     Lopez

contends that his prior Texas conviction for simple possession of

a controlled substance is a misdemeanor under federal law and

should not have been treated as an “aggravated felony” under

U.S.S.G. § 2L1.2(b)(1)(C).    Lopez’s argument is unavailing in

light of this court’s precedent.     See United States v. Rivera,




     *
       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this opinion should not be published and is not precedent except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. 05-40897
                         c/w No. 05-41087

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

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

     Lopez 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).   This contention provides no ground for relief.

     Lopez argues, in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), that his three-year term of supervised release

exceeds the statutory maximum sentence allowed for the 8 U.S.C.

§ 1326(a) offense charged in his indictment.   He challenges the

constitutionality of § 1326(b)’s treatment of prior felony and

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury.

     Lopez’s constitutional challenge is foreclosed by

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

Although Lopez 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).     Lopez

properly concedes that his argument is foreclosed in light of
                          No. 05-40897
                        c/w No. 05-41087

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

     The judgment of the district court is AFFIRMED.
