               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-50849
                        Conference Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ALEJANDRO CORTINAS-CHAVARRIA,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. A-01-CR-91-ALL-SS
                       --------------------
                          April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Alejandro Cortinas-Chavarria appeals the sentence imposed

following his guilty plea conviction of being found in the United

States after deportation in violation of 8 U.S.C. § 1326.

Cortinas-Chavarria complains that his sentence was improperly

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

deportation following an aggravated felony conviction.   Cortinas-

Chavarria argues that the sentencing provision violates the Due

Process Clause because it permitted the sentencing judge to find,

under a preponderance of the evidence standard, a fact which


     *
        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that this opinion should not be published and is not precedent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. 01-50849
                                 -2-

increased the statutory maximum sentence to which he otherwise

would have been exposed.   Cortinas-Chavarria thus contends that

his sentence is invalid and argues that it should not exceed the

two-year maximum term of imprisonment prescribed in 8 U.S.C.

§ 1326(a).

     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.

Cortinas-Chavarria 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.
No. 01-50849
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