United States v. Gonzalez

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-21074
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MYRA “MARIA” GONZALEZ,
also known as Maria Gonzalez-Gonzalez,
Defendant-Appellant.
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CONSOLIDATED WITH
No. 03-41500
--------------------------
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA ELENA RINCON-MACARENA,
also known as Maria Myra Gonzalez,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC Nos. H-00-CR-726-5
B-03-CR-432-ALL
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
United States Court of Appeals
Fifth Circuit
F I L E D
June 23, 2004
Charles R. Fulbruge III
Clerk

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No. 03-21074
c/w 03-41500
-2-
Myra “Maria” Gonzalez appeals her guilty-plea conviction and
sentence for being found illegally present in the United States
after deportation. She 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. She concedes that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), and she 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).
Gonzalez does not brief any argument concerning how or why
any potential reduction in her sentence for the 8 U.S.C. § 1326
conviction would have any bearing on the sentence the district
court imposed upon revocation of her supervised release for her
8 U.S.C. § 1324(a)(1)(A)(iii) conviction. She has therefore
abandoned her appeal from the revocation of her supervised
release. United States v. Valdiosera-Godinez, 932 F.2d 1093,
1099 (5th Cir. 1991).
AFFIRMED.

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