                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                                                              April 23, 2003
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                            No. 02-40724

                        Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JOSE LUIS BARDALES STRURBER,
also known as Juan Carlos Figueroa-Landeros,
also known as Jose Luis Bardales Streber,

                                           Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-01-CR-636-1
                      --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Jose Luis Bardales Strurber 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.

Strurber argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.

     Strurber acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but


     *
        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that this opinion should not be published and is not precedent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. 02-40724
                                 -2-

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.

       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.
