USA v. Terrance Lamnont Francis, No. 12-15659 (11th Cir. 2013)
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Case: 12-15659 Date Filed: 07/26/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-15659 Non-Argument Calendar ________________________ D.C. Docket No. 8:03-cr-00359-SDM-TGW-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TERRANCE FRANCIS, Defendant-Appellant. __________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (July 26, 2013) Before MARCUS, JORDAN, and KRAVITCH, Circuit Judges. PER CURIAM: Terrance Francis appeals the district court s order revoking his term of supervised release and sentencing him to 30 months imprisonment for violating the conditions of his supervised release. Mr. Francis argues that 18 U.S.C. § Case: 12-15659 Date Filed: 07/26/2013 Page: 2 of 3 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 a finding 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. 18 U.S.C. § 3583(e)(3). 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 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. Francis concedes that our decision in Cunningham forecloses his argument. See Appellant s Brief at 10 n.5 ( Mr. Francis recognizes that this Court 2 Case: 12-15659 Date Filed: 07/26/2013 Page: 3 of 3 rejected the argument in Cunningham. Thus, Mr. Francis 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. Francis term of supervised release. AFFIRMED. 3
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