               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 02-50910
                        Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

RAUL HERRERA-PINA,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. EP-02-CR-282-ALL-PRM
                       --------------------
                         February 20, 2003


Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Raul Herrera-Pina 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.    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).

Herrera-Pina complains that his sentence was improperly enhanced

pursuant to 8 U.S.C. § 1326(b).    He argues that the sentencing

provision is unconstitutional.    Alternatively, Herrera-Pina


     *
        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that this opinion should not be published and is not precedent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. 02-50910
                                 -2-

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 was an element of a separate

offense under 8 U.S.C. § 1326(b) that should have been alleged in

his indictment.

       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.

Herrera-Pina 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.
