United States v. Rivera-Alvarez

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40278
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIAS RIVERA-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-459
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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-

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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

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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.

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