United States v. Rodriguez-Flores

* 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this opinion should not be published and is not precedent except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. 03-41501
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS RODRIGUEZ-FLORES,
also known as Simon Millan-Flores,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-563-ALL
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
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 (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 Court of Appeals
Fifth Circuit
F I L E D
June 23, 2004
Charles R. Fulbruge III
Clerk

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No. 03-41501
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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 (1998), but seeks to preserve it for
Supreme Court review. Apprendi did not overrule Almendarez-
Torres. Apprendi, 530 U.S. at 489-90, 496. This court must
follow Almendarez-Torres until the Supreme Court overrules it.
United States v. Hernandez-Avalos, 251 F.3d 505, 507 & n.1
(5th Cir. 2001).
AFFIRMED.

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