United States v. Birula-Hernandez , 111 F. App'x 334 ( 2004 )

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. 04-40271
c/w No. 04-40279
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN BIRULA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-820-ALL
USDC No. 1:04-CR-61-ALL
--------------------
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Juan Birula-Hernandez appeals his guilty-plea conviction and
sentence for being found illegally present in the United States
after deportation. 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
*
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this opinion should not be published and is not precedent except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. 04-40271
c/w No. 04-40279
-2-
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).
Birula does not brief any argument concerning how or why any
potential reduction in his sentence for the 8 U.S.C. § 1326conviction would have any bearing on the sentence the district
court imposed upon revocation of his supervised release for his
prior illegal-reentry conviction. 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.