                                                       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. 02-50788
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

LEOPOLDO REYNA-ROMO,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. SA-01-CR-245-ALL
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Leopoldo Reyna-Romo appeals his conviction and sentence for

being found in the United States after removal in violation of

8 U.S.C. § 1326.   Reyna-Romo concedes that the two issues he

raises on appeal are foreclosed by this court’s precedent.        He

raises the arguments to preserve them for Supreme Court review.

     Reyna-Romo first argues that the removal order underlying

his 8 U.S.C. § 1326 conviction was obtained in violation of his

due process rights.    According to Reyna-Romo, his removal

proceeding was fundamentally unfair because immigration officials

     *
        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that this opinion should not be published and is not precedent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. 02-50788
                                  -2-

improperly applied retroactively certain statutory changes to the

immigration laws to prohibit him from applying for discretionary

relief from removal pursuant to Immigration and Nationality Act

§ 212(c).   He contends that the district court erred by denying

his motion to dismiss the indictment on that basis.

     In United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir.

2002), cert. denied, 123 S. Ct. 922 (2003), this court held that

an immigration judge’s failure to inform an alien at his removal

hearing of his eligibility for § 212(c) relief does not rise to

the level of fundamental unfairness necessary to successfully

challenge a removal order under the third prong of

8 U.S.C. § 1326(d).   Reyna-Romo’s argument that his removal order

cannot be used to support his conviction under 8 U.S.C. § 1326 is

indeed foreclosed.

     Reyna-Romo next argues that his sentence is invalid because

it exceeds the two-year maximum term of imprisonment prescribed

in 8 U.S.C. § 1326(a).   He contends that the enhancement of his

sentence pursuant to 8 U.S.C. § 1326(b) was improper because the

sentencing provision is unconstitutional.    Alternatively, Reyna-

Romo 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
                          No. 02-50788
                                -3-

separate offenses.   The Court further held that the sentencing

provisions do not violate the Due Process Clause.    Id. at 239-47.

Contrary to Reyna-Romo’s suggestion, that decision was not

overruled by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

See 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.”    Id. (internal

quotation marks and citation omitted).   Reyna-Romo’s second

argument is also foreclosed.

     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.

     MOTION GRANTED; AFFIRMED.
