United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-40369
c/w No. 04-40379
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO CARBAJAL-HERNANDEZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-161-ALL
USDC No. 1:03-CR-861-ALL
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Roberto Carbajal-Hernandez (“Carbajal”) appeals from his
guilty-plea conviction for illegal reentry after deportation as
well as from the revocation of supervised release relating to a
prior illegal reentry conviction. He argues that the “felony”
and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and
(2) are unconstitutional in light of the Supreme Court’s
decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and
*
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this opinion should not be published and is not precedent except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. 04-40369
c/w No. 04-40379
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Blakely v. Washington, 124 S. Ct. 2531 (2004). He therefore
reasons that both the instant conviction as well as his prior
illegal reentry conviction must be reduced to convictions under
the lesser included offense found in 8 U.S.C. § 1326(a)(2).
A defendant may not use the revocation of supervised release
to challenge his sentence for the underlying offense based on
Apprendi for the first time. United States v. Moody, 277 F.3d
719, 720-21 (5th Cir. 2001). Therefore, Carbajal may not
challenge his prior illegal reentry conviction in the appeal of
the revocation of his supervised release. See id.
Regardless, as Carbajal acknowledges, his attack on 8 U.S.C.
§ 1326(b) is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 226-27 (1998), but he seeks to preserve it for
Supreme Court review. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United
States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.), cert.
denied, 124 S. Ct. 358 (2003). Accordingly, this court must
follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Mancia-Perez, 331 F.3d at 470
(internal quotation and citation omitted). Moreover, in United
States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir.), petition for
cert. filed (U.S. July 14, 2004) (No. 04-5263), this court held
that “Blakely does not extend to the federal Guidelines.” A
panel of this court cannot overrule a prior panel’s decision in
the absence of an intervening contrary or superseding decision by
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c/w No. 04-40379
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this court sitting en banc or by the United States Supreme Court.
United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir.
2002). Accordingly, the judgments of the district court are
AFFIRMED.