                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                                                           F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                            September 22, 2004

                           _______________________                     Charles R. Fulbruge III
                                                                               Clerk
                                 NO. 03-41589
                           _______________________

                       UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                        versus

                           RICARDO JAUREGUI-DURAN,

                                                            Defendant-Appellant.



           Appeals from the United States District Court
                 for the Southern District of Texas
                           B-03-CR-703-ALL


Before REAVLEY, JONES and DENNIS, Circuit Judges.

PER CURIAM:*

                                 I.     BACKGROUND

           Ricardo Jauregui-Duran appeals from the revocation of his

term of supervised release.             In this appeal, Jauregui-Duran seeks

to challenge his underlying conviction on the grounds that he was

improperly     convicted    of     a    subsequent      commission   of   8    U.S.C.

§ 1325(a). He alleges that the conviction was improper because the

prior “commission” of 8 U.S.C. § 1325(a) alleged in the indictment

was   actually   required     to       be   a   prior   conviction   of    8   U.S.C.

§ 1325(a).


      *
            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opinion should not be published and is not precedent except under the limited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.
              This court has previously held that a defendant may not

challenge his underlying conviction in the context of an appeal

from the revocation of his term of supervised release, but should

properly raise such a challenge in a 28 U.S.C. § 2255 motion.             See

United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001); United

States   v.    Francischine,   512   F.2d   827,   828   (5th   Cir.   1975).

Although this court has intimated that a jurisdictional exception

may exist to that bar, see United States v. Teran, 98 F.3d 831,

832-33 (5th Cir. 1996), we need not address the existence of that

exception because the instant challenge is not jurisdictional. Cf.

United States v. Longoria, 298 F.3d 367, 369, 372 (5th Cir. 2002).

Similarly, because this claim is not properly before the court, we

need not reach Jauregui-Duran’s substantive claim as to 8 U.S.C.

§ 1325(a), and specifically withhold consideration of this issue.

              Accordingly, because Jauregui-Duran’s instant challenge

to his underlying conviction is not cognizable in this appeal, the

district court’s judgment is AFFIRMED.




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