               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 02-50737
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

ROGELIO DE LA FUENTE-DE LA FUENTA,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. DR-01-CR-639-1-WWJ
                       --------------------
                         February 20, 2003

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

PER CURIAM:*

     Rogelio De La Fuente-De La Fuenta 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.    He contends that the sentence is invalid

because it exceeds the two-year maximum term of imprisonment

prescribed in 8 U.S.C. § 1326(a).    De La Fuente-De La Fuenta

complains that his sentence was improperly enhanced pursuant to

8 U.S.C. § 1326(b).    He argues that the sentencing provision is

unconstitutional.    Alternatively, De La Fuente-De La Fuenta

     *
        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that this opinion should not be published and is not precedent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. 02-50737
                                 -2-

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 was an element of a separate

offense under 8 U.S.C. § 1326(b) 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.     Id. at 239-47.

De La Fuente-De La Fuenta acknowledges that his arguments are

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 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.

       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.
