                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                                                              April 24, 2003
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                            No. 02-40333
                        Conference Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

RENE GONZALEZ-DAVILA,

                                         Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. M-01-CR-717-1
                        --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Rene Gonzalez-Davila appeals his guilty plea conviction

and sentence for being found in the United States after

deportation/removal in violation of 8 U.S.C. § 1326.     Gonzalez-

Davila argues that the sentencing provisions in 8 U.S.C.

§ 1326(b) are unconstitutional on their face and as applied in

his case.   He contends that the unconstitutional portions of

8 U.S.C. § 1326 should be severed from the statute.     He asks us

to vacate his conviction and sentence, reform the judgment to




     *
        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that this opinion should not be published and is not precedent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. 02-40333
                                  -2-

reflect a conviction only under 8 U.S.C. § 1326(a), and remand

his case for resentencing under that provision.

       Pursuant to an oral plea agreement, Gonzalez-Davila waived

the right to appeal his sentence.    Gonzalez-Davila contends, for

several reasons, that his appeal waiver should not preclude our

consideration of the foregoing issue.      The Government has not

filed a brief in this case and has not requested that the waiver

be enforced.    Even if Gonzalez-Davila’s challenge to the

constitutionality of 8 U.S.C. § 1326(b) is not precluded by his

waiver of appeal, it is 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.

Gonzalez-Davila 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.
                         No. 02-40333
                               -3-

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.   The Government asks that an

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

     AFFIRMED; MOTION GRANTED.
