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

                            No. 02-41066
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ARTURO MENDOZA-JIMENEZ,
also known as Mario Jimenez Mendoza,

                                         Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. B-02-CR-151-1
                        --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Arturo Mendoza-Jimenez 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.     Mendoza-

Jimenez 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


     *
       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this opinion should not be published and is not precedent except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. 02-41066
                                 -2-

to vacate his conviction and sentence, reform the judgment to

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

his case for resentencing under that provision.

       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.

Mendoza-Jimenez acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been called

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 489-90

(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).    Accordingly, the judgment of the district

court is AFFIRMED.

       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.
