* Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED April 11, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40556 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus RICARDO RIVAS-MEDINA, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2098-ALL

-------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM: * Ricardo Rivas-Medina (Rivas) pleaded guilty to illegal reentry after deportation and was sentenced to 37 months of imprisonment and a three-year term of supervised release. Rivas contends for the first time on appeal that the district court erred when it characterized his 2001 Texas felony conviction of simple possession of a controlled substance as an aggravated felony and enhanced his offense level by eight levels under U.S.S.G. § 2L1.2(b)(1)(C). In United States v. Hinojosa-Lopez , 130 F.3d 691, 693-94 (5th Cir. 1997), this courtNo. 05-40556 -2- held that a state conviction is an “aggravated felony” pursuant to U.S.S.G. § 2L1.2(b) if the offense was punishable under the Controlled Substances Act (CSA) and a felony under applicable state law. Hinojosa-Lopez , 130 F.3d at 693. Rivas concedes that his simple-possession conviction was a felony under Texas law. Also, the CSA criminalizes possession of a controlled substance. 21 U.S.C. § 844(a). Rivas’s prior conviction therefore is an aggravated felony that warrants the U.S.S.G. § 2L1.2(b)(1)(C) eight-level offense level increase. See Hinojosa-Lopez , 130 F.3d at 694; see also United States v. Rivera , 265 F.3d 310, 312-13 (5th Cir. 2001). Rivas recognizes this court’s prior decisions, but he argues that this circuit’s precedent is inconsistent with the Supreme Court’s analysis set forth in Jerome v. United States , 318 U.S. 101 (1943). Jerome did not involve interpretation of the Guidelines. Also, Jerome , a 1943 decision, is not “an intervening Supreme Court case” that explicitly or implicitly overruled Hinojosa-Lopez . Thus, this court is bound by HinojosaLopez , see Martin v. Medtronic, Inc. , 254 F.3d 573, 577 (5th Cir. 2001), and Jerome does not affect the binding precedential value of Rivera and Hinojosa-Lopez
. Rivas also argues for the first time on appeal that the district court erred by ordering him to cooperate in the collection of a DNA sample as a condition of supervised release. Rivas’s claim is not ripe for review on direct appeal. SeeNo. 05-40556 -3- United States v. Riascos-Cuenu , 428 F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662). The claim is dismissed. Additionally, Rivas’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998). Although Rivas contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey , 530 U.S. 466 (2000), 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). Rivas 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. JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.