                                                       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. 04-40271
                           c/w No. 04-40279
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN BIRULA-HERNANDEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-820-ALL
                     USDC No. 1:04-CR-61-ALL
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Juan Birula-Hernandez appeals his guilty-plea conviction and

sentence for being found illegally present in the United States

after deportation.   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


     *
       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this opinion should not be published and is not precedent except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. 04-40271
                         c/w No. 04-40279
                                -2-

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).

     Birula does not brief any argument concerning how or why any

potential reduction in his sentence for the 8 U.S.C. § 1326

conviction would have any bearing on the sentence the district

court imposed upon revocation of his supervised release for his

prior illegal-reentry conviction.   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.
