               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 02-20290
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

DAVID TAPIA-TIBURCIO,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-01-CR-603-1
                      --------------------
                        October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     David Tapia-Tiburcio appeals his guilty plea conviction and

sentence for being found in the United States after deportation

in violation of 8 U.S.C. § 1326.   Tapia-Tiburcio 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




     *
       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this opinion should not be published and is not precedent except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. 02-20290
                                 -2-

from the statute.    He asks us 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.

Tapia-Tiburcio 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), cert. denied, 531 U.S. 1202 (2001).    This court

must follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.”    Id. 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.
