                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                                                              April 24, 2003
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                            No. 02-51279
                        Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

SERGIO MARTIN HERNANDEZ-GARCIA,


                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. EP-02-CR-1172-ALL-PM
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Sergio Martin Hernandez-Garcia appeals the sentence imposed

following his guilty plea conviction of being found in the United

States after deportation/removal in violation of 8 U.S.C. § 1326.

Hernandez contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)

define separate offenses.    He argues that the prior conviction

that resulted in his increased sentence is an element of a

separate offense under 8 U.S.C. § 1326(b) that should have been

alleged in his indictment.   Hernandez maintains that he pleaded


     *
        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that this opinion should not be published and is not precedent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. 02-51279
                                 -2-

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.    Alternatively, he argues that construing 8 U.S.C.

§ 1326(b) as a sentence-enhancement provision renders the statute

unconstitutional.

       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.

Hernandez acknowledges that his arguments are 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 arguments 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).    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 an appellee’s brief not be required.    The motion is GRANTED.

       AFFIRMED; MOTION GRANTED.
