United States v. Macias-Luna , 115 F. App'x 233 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-20280
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO MACIAS-LUNA,
Defendant-Appellant.
Consolidated with
No. 04-20295
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO MACIAS-LUNA, also known as Humberto Luna Macias,
also known as Humberto Macias Luna, also known as Juan
Becker,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-298-ALL
USDC No. 4:03-CR-478-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
No. 04-20280 c/w
No. 04-20295
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PER CURIAM:*
In this consolidated appeal, Humberto Macias-Luna appeals
his guilty-plea conviction for illegal reentry following
deportation (No. 04-20280) and the revocation of his supervised
release on a charge of illegal reentry (No. 04-20295). 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).
Macias-Luna 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 supervised
release for reconsideration in the light of the reduced
*
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this opinion should not be published and is not precedent except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. 04-20280 c/w
No. 04-20295
-3-
seriousness of the illegal-reentry offense. Macias-Luna does not
brief any argument concerning how or why any potential reduction
in his sentence stemming from his conviction for illegal reentry
following deportation would have any bearing on the sentence the
district court imposed upon revocation of his supervised release.
He therefore has abandoned his appeal from the revocation of his
supervised release. United States v. Valdiosera-Godinez,
932 F.2d 1093, 1099 (5th Cir. 1991).
AFFIRMED.