                                                       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. 06-40278
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ELIAS RIVERA-ALVAREZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:05-CR-459
                       --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Elias Rivera-Alvarez appeals from his guilty plea conviction

and sentence for illegal reentry following deportation in

violation of 8 U.S.C. § 1326.   Rivera-Alvarez 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).   Rivera-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).      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this opinion should not be published and is not precedent except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. 06-40278
                                -2-

Alvarez 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).

Rivera-Alvarez requests that this case be held pending a decision

in United States v. Toledo-Flores, 149 F. App’x 241 (5th Cir.

2005), cert. granted, 126 S. Ct. 1652 (2006).   The grant of

certiorari does not alter the authority of this court’s

decisions; thus, this court continues to follow its precedent

even when the Supreme Court grants certiorari on an issue.

See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).

Rivera-Alvarez’s argument is without merit.

     Rivera-Alvarez also argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   His constitutional challenge is foreclosed by

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

Although Rivera-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).   Rivera-Alvarez properly concedes that
                          No. 06-40278
                               -3-

his argument is foreclosed by Almendarez-Torres and circuit

precedent, but he raises it here solely to preserve it for

further review.

     Accordingly, the judgment of the district court is AFFIRMED.
