United States v. Rodriguez-Flores

101 F. App'x 541

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 2004
• Docket: 03-41501
• Status: Unpublished

Opinion

PER CURIAM: *

Jose Luis Rodriguez-Flores appeals the revocation of his supervised release based on his being found illegally in the United States after deportation in violation of the conditions of his supervised release. He argues that his underlying conviction under 8 U.S.C. § 1326 is unconstitutional in view of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 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, Rodriguez-Flores may not challenge his underlying conviction in this appeal of the revocation of his supervised release. See id.

Nonetheless, Rodriguez-Flores acknowledges that his attack on his conviction is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but seeks to preserve it for Supreme Court review. Apprendi did not overrule AlmendarezTorres. Apprendi, 530 U.S. at 489-90, 496. This court must follow AlmendarezTorres until the Supreme Court overrules it. United States v. Hemandez-Avalos, 251 F.3d 505, 507 & n. 1 (5th Cir.2001).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.