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                                                           [DO NOT PUBLISH]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. §
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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, 

(2000), Blakely v. Washington, 

(2004), and Int’l Union,

United Mine Workers of Am. v. Bagwell, 

(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, 

, 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.” 

.

      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



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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, 

, 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.




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