                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 23, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-10143
                         Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN VILLANUEVA PRONES, also known
as Gustavo Aguirre,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:04-CR-37-ALL
                       --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Juan Villanueva Prones appeals the sentence imposed following

his guilty-plea conviction for illegal reentry after deportation in

violation of 8 U.S.C. § 1326(a) and (b)(2).      He argues that the

district court’s enhancement of his sentence under United States

Sentencing Guidelines § 2L1.2(b)(1)(C) violated United States v.

Booker, 125 S. Ct. 738 (2005).   He also argues that considering his

prior state conviction as an aggravated felony under U.S.S.G. §



     *
       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this opinion should not be published and is not precedent except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.
2L1.2(b)(1)(C)    was   an   erroneous   application   of   the   federal

sentencing guidelines.

     We review Prones’s first issue de novo.      See United States v.

Pineiro, 410 F.3d 282, 285 (5th Cir. 2005).             The government

concedes that Prones preserved a Booker error but argues that

because the district court expressly refused to run the appellant’s

24-month guidelines sentence concurrently with his state court

sentence, there could not have been harmful error.            Under the

circumstances of this case, the district court’s conscious decision

not to award a concurrent sentence persuades us that any Booker

error was harmless beyond a reasonable doubt.          United States v.

Mares, 402 F.3d 511, 518 (5th Cir. 2005).

     We review Prones’s second issue for plain error.             United

States v. Garcia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).

Prones concedes that his second argument is foreclosed by circuit

precedent, and he raises it to preserve it for possible further

review by this court en banc or by the Supreme Court.       The argument

is foreclosed.    A state felony conviction for simple possession of

a controlled substance is an aggravated felony for U.S.S.G. § 2L1.2

purposes, even though such a conviction is a misdemeanor under

federal law.     See Hinojosa-Lopez, 130 F.3d at 693-94.      Jerome v.

United States, 318 U.S. 101 (1943), does not affect this court’s

binding precedent.      Accordingly, Prones’s sentence is AFFIRMED.




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