                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   August 28, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 06-40127
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE CONTRERAS-JIMENEZ,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:05-CR-587-ALL
                       --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Jose Contreras-Jimenez (Contreras) appeals following his

guilty-plea conviction on one count of illegally reentering the

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

Contreras 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).

Contreras’s argument is unavailing in light of circuit precedent.


     *
       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this opinion should not be published and is not precedent except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. 06-40127
                                 -2-

See United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th

Cir. 1997).   Contreras 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).

     For the first time on appeal, Contreras challenges the

constitutionality of § 1326(b) in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).   Contreras’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998).   Although Contreras 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).   Contreras 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.
