                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  October 22, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-50446
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MARIANO ORTIS-ESTRADA,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. DR-02-CR-00605-ALL
                       --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

    Mariano Ortis-Estrada 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.         Ortis

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.   Ortis maintains that he pleaded guilty to an

     *
        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that this opinion should not be published and is not precedent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. 03-50446
                                 -2-

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.

Ortis 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.
