115 F. App'x 233

UNITED STATES of America, Plaintiff-Appellee, v. Humberto MACIAS-LUNA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Humberto Macias-Luna, also known as Humberto Luna Macias, also known as Humberto Macias Luna, also known as Juan Becker, Defendant-Appellant.

Nos. 04-20280, 04-20295.

Conference Calendar.

United States Court of Appeals, Fifth Circuit.

Decided Dec. 17, 2004.

James Lee Turner, Assistant U.S. Attorney, Jeffery Alan Babcock, Houston, TX, for Plaintiff-Appellee.

*234Marjorie A. Meyers, Federal Public Defender, Raquel Kathy Wilson, Assistant Federal Public Defender, Houston, TX, for Defendant-Appellant.

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and he raises it for possible review by the Supreme Court.

This argument is foreclosed by Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. 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 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.

United States v. Macias-Luna
115 F. App'x 233

Case Details

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United States v. Macias-Luna
Decision Date
Dec 17, 2004
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115 F. App'x 233

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United States

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