               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 02-50613
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

FRANCISCO PENA-MEDINA,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. EP-02-CR-673-ALL-DB
                       --------------------
                         October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Francisco Pena-Medina 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.     Pena-Medina

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 is an element

of the offense under 8 U.S.C. § 1326(b)(2) that should have been

alleged in his indictment.   Pena-Medina maintains that he pleaded

guilty to an indictment which charged only simple reentry under

     *
        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that this opinion should not be published and is not precedent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. 02-50613
                                 -2-

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.

Pena-Medina 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 an appellee’s brief not be required.   The motion is GRANTED.

     AFFIRMED; MOTION GRANTED.
