                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS         June 23, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                              No. 03-41501
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE LUIS RODRIGUEZ-FLORES,
also known as Simon Millan-Flores,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. M-02-CR-563-ALL
                      --------------------

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.

     *
       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this opinion should not be published and is not precedent except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. 03-41501
                                 -2-

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.
