                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 02-50175
                         Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

RAMIRO LUA-GARCIA,
also known as Gerardo Paulido-Garcia,

                                           Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                    USDC No. EP-01-CR-1415-ALL-DB
                         --------------------
                            August 22, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

     Ramiro Lua-Garcia appeals the sentence imposed following his

guilty plea conviction of being found in the United States after

removal in violation of 8 U.S.C. § 1326.    Lua-Garcia contends

that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2) define separate

offenses.   He argues that the aggravated felony conviction that

resulted in his increased sentence is an element of the offense

under 8 U.S.C. § 1326(b)(2) that should have been alleged in his

indictment.    Lua-Garcia maintains that he pleaded guilty to an


     *
        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that this opinion should not be published and is not precedent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. 02-50175
                                -2-

indictment which charged only simple reentry under 8 U.S.C.

§ 1326(a).   He argues that his sentence exceeds the two-year

maximum term of imprisonment which may be imposed for that

offense.

     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.

Lua-Garcia 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), cert. denied, 531 U.S. 1202 (2001).    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 the judgment of the district court be affirmed and that an

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

     AFFIRMED; MOTION GRANTED.
