United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 13, 2004
Charles R. Fulbruge III
Clerk
No. 03-41610
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FRANCISCO HERNANDEZ RIVERA,
also known as Hugo Alberto Ugarte-Duarte,
Defendant-Appellant.
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Consolidated with
No. 03-41615
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE FRANCISCO HERNANDEZ RIVERA,
also known as Jose Albert Gonzalez-Gonzalez,
also known as Luis Alberto Lacayo-Perez,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC Nos. B-01-CR-467-1
B-03-CR-608-1
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No. 03-41610 c/w 03-41615
-2-
Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, Jose Francisco Hernandez-Rivera
appeals his guilty-plea conviction for illegal reentry following
deportation subsequent to a conviction for a felony (No. 03-
41610) and the revocation of his supervised release on a charge
of illegal reentry (No. 03-41615). He argues, pursuant to
Apprendi v. New Jersey, 530 U.S. 466 (2000), that the “felony”
and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and
(2) are elements of the offense, not sentence enhancements,
making those provisions unconstitutional. He concedes that this
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998), and he raises it for possible review by the
Supreme Court.
This argument is foreclosed by Almendarez-Torres, 523 U.S.
at 235. We must follow the precedent set forth in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000) (internal quotation and citation
omitted).
Hernandez-Rivera argues that if the court grants his
requested relief and vacates and remands for resentencing, the
court should also remand the district court’s revocation of his
*
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this opinion should not be published and is not precedent except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. 03-41610 c/w 03-41615
-3-
supervised release for reconsideration in light of the reduced
seriousness of the illegal-reentry offense. Hernandez-Rivera
does not brief any argument concerning how or why any potential
reduction in his sentence stemming for his conviction for illegal
reentry following deportation subsequent to a conviction for a
felony would have any bearing on the sentence the district court
imposed upon revocation of his supervised release. He has
therefore abandoned his appeal from the revocation of his
supervised release. United States v. Valdiosera-Godinez,
932 F.2d 1093, 1099 (5th Cir. 1991).
AFFIRMED.