                                                       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. 03-50821
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FREDDY CRUZ-DURAN,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. DR-03-CR-278-1-AML
                       --------------------

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

PER CURIAM:*

    Freddy Cruz-Duran 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.     Cruz-Duran

contends that 8 U.S.C. § 1326(b)(2) is an unconstitutional

sentencing provision.   He argues that his sentence exceeds the

two-year maximum term of imprisonment which may be imposed under

8 U.S.C. § 1326(a).



     *
        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that this opinion should not be published and is not precedent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. 03-50821
                                 -2-

       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.

Cruz-Duran 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.
