                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40369
                          c/w No. 04-40379
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROBERTO CARBAJAL-HERNANDEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:04-CR-161-ALL
                     USDC No. 1:03-CR-861-ALL
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Roberto Carbajal-Hernandez (“Carbajal”) appeals from his

guilty-plea conviction for illegal reentry after deportation as

well as from the revocation of supervised release relating to a

prior illegal reentry conviction.   He argues that the “felony”

and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and

(2) are unconstitutional in light of the Supreme Court’s

decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and


     *
       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this opinion should not be published and is not precedent except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. 04-40369
                         c/w No. 04-40379
                                -2-

Blakely v. Washington, 124 S. Ct. 2531 (2004).    He therefore

reasons that both the instant conviction as well as his prior

illegal reentry conviction must be reduced to convictions under

the lesser included offense found in 8 U.S.C. § 1326(a)(2).

     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 v. Moody, 277 F.3d

719, 720-21 (5th Cir. 2001).   Therefore, Carbajal may not

challenge his prior illegal reentry conviction in the appeal of

the revocation of his supervised release.     See id.

     Regardless, as Carbajal acknowledges, his attack on 8 U.S.C.

§ 1326(b) is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 226-27 (1998), but he seeks to preserve it for

Supreme Court review.   Apprendi did not overrule

Almendarez-Torres.   See Apprendi, 530 U.S. at 489-90; United

States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.), cert.

denied, 124 S. Ct. 358 (2003).    Accordingly, this court must

follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.”     Mancia-Perez, 331 F.3d at 470

(internal quotation and citation omitted).    Moreover, in United

States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir.), petition for

cert. filed (U.S. July 14, 2004) (No. 04-5263), this court held

that “Blakely does not extend to the federal Guidelines.”     A

panel of this court cannot overrule a prior panel’s decision in

the absence of an intervening contrary or superseding decision by
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                         c/w No. 04-40379
                                -3-

this court sitting en banc or by the United States Supreme Court.

United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir.

2002).   Accordingly, the judgments of the district court are

AFFIRMED.
