                                                        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. 06-20067
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

NOE   MONDRAGON-JIMENEZ, also known as
Noe   Jiminez Mondragon, also known as
Noe   Jimenez Mondragon, also known as
Noe   Mondragon,
                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 4:05-CR-325-ALL
                        --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

      Noe Mondragon-Jimenez (Mondragon) appeals the sentence

imposed following his guilty-plea conviction for being unlawfully

present in the United States after deportation, in violation of

8 U.S.C. § 1326.   Mondragon argues for the first time on appeal

that the district court misapplied the Sentencing Guidelines by

characterizing his state felony convictions for possession of a

controlled substance as aggravated felonies for purposes of

U.S.S.G. § 2L1.2(b)(1)(C).   Mondragon’s argument is unavailing in

      *
       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this opinion should not be published and is not precedent except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. 06-20067
                                -2-

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

130 F.3d 691, 693-94 (5th Cir. 1997).     Mondragon 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, Mondragon also challenges the

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

Jersey, 530 U.S. 466 (2000).   The Government argues that

Mondragon lacks standing to bring a facial challenge to the

constitutionality of § 1326(b).

     Because Mondragon may be entitled to a lesser sentence if

his constitutional challenge were successful, he has standing.

See Henderson v. Stalder, 287 F.3d 374, 380 (5th Cir. 2002).

Mondragon cannot succeed on his constitutional challenge,

however, because his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998).     Although Mondragon

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).    Mondragon properly concedes that

his argument is foreclosed in light of Almendarez-Torres and
                          No. 06-20067
                               -3-

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

further review.

     AFFIRMED.
