                                                       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. 06-40115
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JESUS RAMIREZ-ALVAREZ,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-686-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Jesus Ramirez-Alvarez appeals his 35-month sentence imposed

following his guilty plea to a charge of illegally reentering the

United States after deportation, in violation of 8 U.S.C. § 1326.

Ramirez-Alvarez argues that the district court erred by

characterizing his state felony conviction for possession of

marijuana as an aggravated felony for purposes of U.S.S.G.

§ 2L1.2(b)(1)(C).   Ramirez-Alvarez’s argument is unavailing in

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

130 F.3d 691, 693-94 (5th Cir. 1997).   Ramirez-Alvarez argues

     *
       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this opinion should not be published and is not precedent except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. 06-40115
                                -2-

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).

     Ramirez-Alvarez also challenges the constitutionality of

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

(2000).   Ramirez-Alvarez’s constitutional challenge is foreclosed

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

Although Ramirez-Alvarez 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).   Ramirez-Alvarez 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.
