                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                 October 13, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                          No. 03-41610
                        Summary Calendar



UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

versus

JOSE FRANCISCO HERNANDEZ RIVERA,
also known as Hugo Alberto Ugarte-Duarte,

                                   Defendant-Appellant.

                   --------------------------
                        Consolidated with
                           No. 03-41615
                   --------------------------

UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

versus

JOSE FRANCISCO HERNANDEZ RIVERA,
also known as Jose Albert Gonzalez-Gonzalez,
also known as Luis Alberto Lacayo-Perez,

                                   Defendant-Appellant.

                        --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                      USDC Nos. B-01-CR-467-1
                             B-03-CR-608-1
                        --------------------
                     No. 03-41610 c/w 03-41615
                                -2-

Before EMILIO M.   GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     In this consolidated appeal, Jose Francisco Hernandez-Rivera

appeals his guilty-plea conviction for illegal reentry following

deportation subsequent to a conviction for a felony (No. 03-

41610) and the revocation of his supervised release on a charge

of illegal reentry (No. 03-41615).   He 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.   He concedes that this

argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224 (1998), and he 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).

     Hernandez-Rivera 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


     *
       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.
                      No. 03-41610 c/w 03-41615
                                 -3-

supervised release for reconsideration in light of the reduced

seriousness of the illegal-reentry offense.   Hernandez-Rivera

does not brief any argument concerning how or why any potential

reduction in his sentence stemming for his conviction for illegal

reentry following deportation subsequent to a conviction for a

felony would have any bearing on the sentence the district court

imposed upon revocation of his supervised release.   He has

therefore abandoned his appeal from the revocation of his

supervised release.    United States v. Valdiosera-Godinez,

932 F.2d 1093, 1099 (5th Cir. 1991).

     AFFIRMED.
