                                                           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. 06-40111
                            Conference Calendar


UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

ALFONSO ROCHA-GAYTAN,

                                        Defendant-Appellant.

                           --------------------
               Appeal from the United States District Court
                    for the Southern District of Texas
                         USDC No. 2:05-CR-594-ALL
                           --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

       Alfonso Rocha-Gaytan appeals his guilty plea conviction and

sentence for being knowingly and unlawfully present in the United

States after deportation in violation of 8 U.S.C. § 1326(a) &

(b).       He argues that the district court erred in determining that

his 2004 Florida felony conviction for simple possession of

cocaine was an aggravated felony for purposes of U.S.S.G.

§ 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(B).      Rocha-Gaytan

acknowledges that we have held that simple possession of cocaine

is an aggravated felony under § 2L1.2(b)(1)(C) in United States

       *
       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this opinion should not be published and is not precedent except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. 06-40111
                                  -2-

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

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

However, he argues that we overlooked Jerome v. United States,

318 U.S. 101 (1943), in reaching these decisions.    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).   Therefore, the district court did not err in

characterizing Rocha-Gaytan’s prior Florida conviction for simple

possession of cocaine as an aggravated felony for purposes of

§ 2L1.2.   See Rivera, 265 F.3d at 312-13; see also Hinojosa-

Lopez, 130 F.3d at 693-94.

     Rocha-Gaytan’s constitutional challenge to the sentencing

provisions of § 1326 is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998).    Although Rocha-Gaytan 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).   Rocha-Gaytan 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.
            No. 06-40111
                 -3-

AFFIRMED.
