               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                            No. 01-51050
                        Conference Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,
versus

HECTOR OCTAVIO MENDOZA-GALLARDO,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. P-00-CR-278-ALL
                       --------------------
                          April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Hector Octavio Mendoza-Gallardo was convicted pursuant to a

guilty plea of being found in the United States after deportation

in violation of 8 U.S.C. § 1326.   The district court granted a

downward departure and sentenced him to two-years’ imprisonment.

A panel of this court held that the district court abused its

discretion in departing downward, vacated the sentence, and

remanded the case for resentencing.   Mendoza-Gallardo now appeals

the increased sentence imposed following remand.

     Mendoza-Gallardo contends that 8 U.S.C. § 1326(a) and

8 U.S.C. § 1326(b)(2) define separate offenses.    He argues that


     *
        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that this opinion should not be published and is not precedent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. 01-51050
                                -2-

the aggravated felony conviction that resulted in his increased

sentence is an element of the offense under 8 U.S.C. § 1326(b)(2)

that should have been alleged in his indictment.    Mendoza-

Gallardo maintains that he pleaded guilty to an indictment which

charged only simple reentry under 8 U.S.C. § 1326(a).    He argues

that his sentence exceeds the two-year maximum term of

imprisonment which may be imposed for that offense.

     In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses.   The Court further held that the sentencing

provisions do not violate the Due Process Clause.     Id. at 239-47.

Mendoza-Gallardo acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been cast

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

He seeks to preserve his argument for further review.

     Apprendi did not overrule Almendarez-Torres.     See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).     This court

must follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.”    Dabeit, 231 F.3d at 984

(internal quotation marks and citation omitted).    The judgment of

the district court is AFFIRMED.

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.   In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required.    The motion is GRANTED.
                    No. 01-51050
                          -3-

AFFIRMED; MOTION GRANTED.
