              Case: 14-12440   Date Filed: 04/08/2015   Page: 1 of 3


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                    _________________________________

                               No. 14-12440
                           Non-Argument Calendar
                    _________________________________

                  D.C. Docket No. 8:11-cr-00225-RAL-MAP-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

STORMY GIDDENS, JR.,

                                                     Defendant-Appellant.
                    _________________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                    _________________________________

                                 (April 8, 2015)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Stormy Giddens, Jr., appeals his sentence of one year and 364 days, which

the district court imposed after the revocation of his second term of supervised

release.   Mr. Giddens originally pled guilty in 2008 to selling, exchanging,
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transferring, and delivering counterfeited and altered obligations of the United

States, in violation of 18 U.S.C. § 473.

      On appeal, Mr. Giddens argues that 18 U.S.C. § 3583(e)(3), which governs

the revocation of supervised release, violates the Fifth and Sixth Amendments

under the principles set out in Apprendi v. New Jersey, 530 U.S. 466 (2000),

Blakely v. Washington, 542 U.S. 296 (2004), and Int’l Union, United Mine

Workers of Am. v. Bagwell, 512 U.S. 821 (1994), because it permits defendants to

receive a sentence of imprisonment and a new term of supervised release upon

findings made by a judge, not a jury, and by a preponderance of the evidence, not

beyond a reasonable doubt.

      Although we generally review a district court’s revocation of supervised

release for an abuse of discretion, we review de novo a constitutional challenge to a

statute. See United States v. Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010).

In relevant part, § 3583(e)(3) states that a district court may “revoke a term of

supervised release, and require the defendant to serve in prison all or part of the

term of supervised release . . . if the court . . . finds by a preponderance of the

evidence that the defendant violated a condition of supervised release.”          In

Cunningham, we held that “§ 3583(e)(3) does not violate the Fifth or Sixth

Amendments because the violation of supervised release need only be proven by a




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preponderance of the evidence, and there is no right to trial by jury in a supervised

release revocation hearing.” Cunningham, 607 F.3d at 1268.

      Mr. Giddens concedes that our decision in Cunningham forecloses his

argument. See Appellant’s Brief at 11 n.2 (“Mr. Giddens recognizes that this

Court rejected the argument in Cunningham. Thus, Mr. Giddens is presenting this

issue primarily for en banc or certiorari review.”). We are bound to follow our

prior binding precedent unless and until it is overruled by this Court en banc or by

the Supreme Court. See United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th

Cir. 2008). Because Cunningham has not been overruled by our Court en banc or

by the Supreme Court, we affirm the district court’s revocation of Mr. Giddens’

term of supervised release.

      AFFIRMED.




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