                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 18, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-10944
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

FLOR MARIA ZARATE-RAMIREZ, also
known as Flor Maria Zarate,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Norhern District of Texas
                    USDC No. 3:03-CR-74-ALL-L
                       --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Flor Maria Zarate-Ramirez appeals the sentence imposed

following her guilty plea conviction of being found in the United

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

Zarate-Ramirez argues that the prior conviction that resulted in

her increased sentence is an element of a separate offense under

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

indictment.    She maintains that she 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that this opinion should not be published and is not precedent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. 03-10944
                                 -2-

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

§ 1326(a).    She argues that her 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.

Zarate-Ramirez acknowledges that her 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).

She seeks to preserve her 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.
