                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-40994
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FERNANDO CESAR MONTEIRO-DE OLIVEIRA,

                                    Defendant-Appellant,


                         Consolidate With
                           No. 03-40999



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FERNANDO MONTEIRO-DE OLIVEIRA,

                                    Defendant-Appellant.


                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-03-CR-285-1
                      --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     *
        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that this opinion should not be published and is not precedent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.
                         No. 03-40994 c/w
                           No. 03-40999
                                -2-

     Fernando Cesar Monteiro-De Oliveira 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.   Monteiro-De Oliveira contends that the “felony”

and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and

(2) are unconstitutional.   He therefore argues that his

conviction must be reduced to one under the lesser included

offense found in 8 U.S.C. § 1362(a), his judgment must be

reformed to reflect a conviction only under that provision, and

his sentence must be vacated and the case remanded for

resentencing to no more than two years’ imprisonment and one year

of supervised release.

     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.

Monteiro-De Oliveira 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



R. 47.5.4.
                          No. 03-40994 c/w
                            No. 03-40999
                                 -3-

“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.
