                                                         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. 05-41467
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JAIME ZAGAL-MERAZ,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-381-ALL
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Jaime Zagal-Meraz (Zagal) appeals his conviction and

sentence for illegal reentry.    Zagal contends that his Minnesota

conviction for simple possession of a controlled substance is a

misdemeanor under federal law and should not have been treated as

an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C) and that

8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).

     Zagal’s § 2L1.2(b)(1)(C) argument is unavailing in light of

our precedent.     See United States v. Rivera, 265 F.3d 310, 312-13

     *
       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this opinion should not be published and is not precedent except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. 05-41467
                                -2-

(5th Cir. 2001); United States v. Hinojosa-Lopez, 130 F.3d 691,

693-94 (5th Cir. 1997).   Zagal argues that our precedent is

inconsistent with Jerome v. United States, 318 U.S. 101 (1943).

Having preceded Hinojosa-Lopez, however, 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).

     Zagal’s constitutional challenge to § 1326(b) is foreclosed

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

Although Zagal 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).   Zagal

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.
