United States v. Jauregui-Duran

* 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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 22, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
NO. 03-41589
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO JAUREGUI-DURAN,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
B-03-CR-703-ALL
Before REAVLEY, JONES and DENNIS, Circuit Judges.
PER CURIAM:*
I. BACKGROUND
Ricardo Jauregui-Duran appeals from the revocation of his
term of supervised release. In this appeal, Jauregui-Duran seeks
to challenge his underlying conviction on the grounds that he was
improperly convicted of a subsequent commission of 8 U.S.C.
§ 1325(a). He alleges that the conviction was improper because the
prior “commission” of 8 U.S.C. § 1325(a) alleged in the indictment
was actually required to be a prior conviction of 8 U.S.C.
§ 1325(a).

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2
This court has previously held that a defendant may not
challenge his underlying conviction in the context of an appeal
from the revocation of his term of supervised release, but should
properly raise such a challenge in a 28 U.S.C. § 2255 motion. See
United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001); United
States v. Francischine, 512 F.2d 827, 828 (5th Cir. 1975).
Although this court has intimated that a jurisdictional exception
may exist to that bar, see United States v. Teran, 98 F.3d 831,
832-33 (5th Cir. 1996), we need not address the existence of that
exception because the instant challenge is not jurisdictional. Cf.
United States v. Longoria, 298 F.3d 367, 369, 372 (5th Cir. 2002).
Similarly, because this claim is not properly before the court, we
need not reach Jauregui-Duran’s substantive claim as to 8 U.S.C.
§ 1325(a), and specifically withhold consideration of this issue.
Accordingly, because Jauregui-Duran’s instant challenge
to his underlying conviction is not cognizable in this appeal, the
district court’s judgment is AFFIRMED.

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