               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 02-50973
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ISMAEL CERDA-MONTES,

                                         Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                     USDC No. EP-02-CR-869-ALL
                        --------------------
                          February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Ismael Cerda-Montes appeals the sentence imposed following

his guilty plea conviction of attempting to illegally reenter the

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

§ 1326.   Cerda-Montes 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 been alleged in his indictment.   Cerda-Montes

maintains that he pleaded guilty to an indictment which charged


     *
        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that this opinion should not be published and is not precedent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. 02-50973
                                 -2-

only simple attempted reentry under 8 U.S.C. § 1326(a).    He

argues that his 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.

Cerda-Montes 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.
