                                                       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
                            No. 03-10170                          Clerk
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MIGUEL ANGEL HERNANDEZ-SIMENTAL,
also known as Raul Hernandez-Simental,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 6:02-CR-34-1-C
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Miguel Angel Hernandez-Simental appeals his guilty-plea

conviction and sentence for violating 8 U.S.C. § 1326(a) and (b)

by being found in the United States, without permission,

following his conviction of an aggravated felony and subsequent

deportation.   For the first time on appeal, Hernandez-Simental

argues that 8 U.S.C. § 1326(b) is unconstitutional because it

does not require the fact of a prior felony or aggravated felony




     *
        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that this opinion should not be published and is not precedent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. 03-10170
                                 -2-

conviction to be treated as an element of the offense, charged in

the indictment, and proved beyond a reasonable doubt.

       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.

Hernandez-Simental 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).

       In lieu of filing an appellee’s brief, the Government has

filed a motion to dismiss the appeal, for summary affirmance, or

alternatively, for an extension of time to submit an appellee’s

brief.    The Government’s request for a summary affirmance is

GRANTED.    The Government need not file an appellee’s brief.

       AFFIRMED.
