                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                              No. 01-50920
                          Conference Calendar


UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

LUCIANO DEL VAL PAYAN,

                                           Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                      USDC No. DR-01-CR-250-01-FB
                          --------------------
                             April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Luciano Del Val Payan appeals the sentence imposed following

his guilty plea conviction of attempting to illegally reenter the

United States after deportation in violation of 8 U.S.C. § 1326.

He contends that the sentence is invalid because it exceeds the

two-year maximum term of imprisonment prescribed in 8 U.S.C.

§ 1326(a).     Del Val Payan complains that his sentence was

improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on

his prior deportation following an aggravated felony conviction.

He argues that the sentencing provision violates the Due Process


     *
        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that this opinion should not be published and is not precedent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. 01-50920
                                 -2-

Clause.   Alternatively, Del Val Payan 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 was an element of the offense under 8 U.S.C.

§ 1326(b)(2) that should have been alleged in his indictment.

     With certain exceptions not relevant in this case, Del Val

Payan waived the right to appeal his “guilty plea, any sentence

imposed within the maximum provided in the statute of conviction,

the application of the Guidelines or [his] conviction on any

ground[.]”   Del Val Payan contends that the waiver-of-appeal

provision has no effect on his appeal because his sentence

exceeded the statutory maximum term of imprisonment prescribed in

8 U.S.C. § 1326(a).    The Government has not filed a brief in this

case and has not requested that the waiver-of-appeal provision be

enforced.    Even if Del Val Payan’s arguments are not precluded by

his waiver-of-appeal provision, they are foreclosed.

Accordingly, we pretermit consideration of the waiver issue.

     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.

Del Val Payan 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.
                         No. 01-50920
                               -3-

     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 the judgment of the district court be affirmed and that an

appellee’s brief not be required.    The motion is GRANTED.

     AFFIRMED; MOTION GRANTED.
