               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                              No. 02-50124
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

DANIEL OLVERO-MARTINEZ,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. DR-01-CR-288-1
                       --------------------
                         February 20, 2003

Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Daniel Olvero-Martinez appeals his sentence after his

guilty-plea conviction for illegally reentering the United

States, in violation of 8 U.S.C. § 1326(a), (b)(2).    He argues

that the district court erroneously increased his offense level

by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because

“transporting aliens” is not an “alien smuggling offense” under

U.S.S.G. § 2L1.2(b)(1)(A)(vii).


     *
        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that this opinion should not be published and is not precedent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. 02-50124
                                 -2-

      In United States v. Solis-Campozano, 312 F.3d 164, 167

(5th Cir. 2002), this court rejected the very argument that

Olvero now raises and held that “transporting aliens” is an

“alien smuggling offense” for purposes of § 2L1.2(b)(1)(A)(vii).

Id.    Accordingly, Olvero’s argument is foreclosed.

      Olvero also argues that his sentence is invalid because it

exceeds the two-year maximum term of imprisonment prescribed in

8 U.S.C. § 1326(a).    Olvero complains that his sentence was

improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on

his prior removal following an aggravated felony conviction.

He argues that the sentencing provision is unconstitutional.

Alternatively, Olvero 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 was an element of the offense under 8 U.S.C.

§ 1326(b)(2) 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

separate offenses.    The Court further held that the sentencing

provisions do not violate the Due Process Clause.      Almendarez-

Torres, 523 U.S. at 239-47.    Olvero acknowledges that his

arguments are foreclosed by Almendarez-Torres but asserts that

the decision has been cast into doubt by Apprendi v. New Jersey,
                            No. 02-50124
                                 -3-

530 U.S. 466, 490 (2000).    He seeks to preserve his arguments 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.
