                                                       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. 02-11126
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

MARTIN RODRIGO GOMEZ-HERRERA,
also known as Rodrigo Martin Gomez,
also known as Martin Herrera,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 1:02-CR-29-ALL
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Martin Rodrigo Gomez-Herrera 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.

Gomez-Herrera 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.   Gomez-Herrera maintains that he

     *
        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that this opinion should not be published and is not precedent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. 02-11126
                                 -2-

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.

Gomez-Herrera 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).    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.

       In lieu of filing an appellee’s brief, the Government has

filed a motion asking this court to dismiss this appeal or, in

the alternative, to summarily affirm the district court’s

judgment.    The Government’s motion to dismiss is DENIED.    The

motion for a summary affirmance is GRANTED.    The Government need

not file an appellee’s brief.

       AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
       AFFIRMANCE GRANTED.
