                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      January 12, 2004

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 03-50774
                              Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JOSE HOMERO ROCHA-GUTIERREZ, also
known as Jose Homero Rocha,

                                           Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                        USDC No. SA-02-CR-77-ALL
                          --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

    Jose Homero Rocha-Gutierrez appeals the sentence imposed

following his guilty plea conviction of being found in the United

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

Rocha-Gutierrez contends that 8 U.S.C. § 1326(a) and 8 U.S.C.

§ 1326(b) define separate offenses.           He argues that the prior

conviction that resulted in his increased sentence is an element

of a separate offense under 8 U.S.C. § 1326(b) that should have


      *
        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that this opinion should not be published and is not precedent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. 03-50774
                                 -2-

been alleged in his indictment.    Rocha-Gutierrez maintains that

he pleaded guilty to an indictment which charged only simple

reentry under 8 U.S.C. § 1326(a).    He argues that his sentence

exceeds the maximum term of supervised release 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.

Rocha-Gutierrez 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).    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 an appellee’s brief not be required.    The motion is GRANTED.

       AFFIRMED; MOTION GRANTED.
