                                                       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. 02-51046
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JAVIER ALARCON-LECHUGA,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. EP-02-CR-813-1-DB
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Javier Alarcon-Lechuga appeals the sentence imposed

following his guilty plea conviction of attempting to illegally

reenter the United States after deportation/removal in violation

of 8 U.S.C. § 1326.   Alarcon-Lechuga 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.

Alarcon-Lechuga maintains that he pleaded guilty to an indictment

     *
        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that this opinion should not be published and is not precedent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. 02-51046
                                 -2-

which charged only attempted 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.

Alarcon-Lechuga 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).    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.
