                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 02-50174
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

WILLIAM DE JESUS GALLARDO-MORENTE,

                                          Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                     USDC No. SA-01-CR-361-ALL
                        --------------------
                           August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

     William De Jesus Gallardo-Morente appeals the sentence

imposed following his guilty plea conviction of being found in

the United States after deportation in violation of 8 U.S.C.

§ 1326.   He contends that the sentence is invalid because it

exceeds the two-year maximum term of imprisonment prescribed in

8 U.S.C. § 1326(a).   Gallardo-Morente complains that his sentence

was improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based

on his prior deportation following an aggravated felony

conviction.    He argues that the sentencing provision violates the

     *
        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that this opinion should not be published and is not precedent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. 02-50174
                                 -2-

Due Process Clause.   Alternatively, Gallardo-Morente contends

that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2) define separate

offenses.   He argues that the aggravated felony conviction that

resulted in his increased sentence was an element of the offense

under 8 U.S.C. § 1326(b)(2) that should have been alleged in his

indictment.

     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.

Gallardo-Morente 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), 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.

     AFFIRMED; MOTION GRANTED.
