               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 01-40035
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

JORGE DURAN-PISARO,

                                          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-00-CR-157-1
                      --------------------
                         August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

     Jorge Duran-Pisaro appeals the sentence imposed following

his guilty plea conviction of being found in the United States

after deportation in violation of 8 U.S.C. § 1326.     Duran-Pisaro

contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2) define

separate offenses.    He argues that the aggravated felony

conviction that resulted in his increased sentence is an element

of the offense under 8 U.S.C. § 1326(b)(2) that should have been

alleged in his indictment.   Duran-Pisaro maintains that he

pleaded guilty to an indictment which charged only simple reentry

     *
        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that this opinion should not be published and is not precedent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. 01-40035
                                 -2-

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.

Duran-Pisaro 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), cert. denied, 531 U.S. 1202 (2001).    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 the judgment of the district court be affirmed and that an

appellee’s brief not be required.    The motion is GRANTED.   The

Government’s alternative motion, for leave to file an appellee’s

brief out of time, is DENIED as moot.

     AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE GRANTED; MOTION FOR
     LEAVE TO FILE BRIEF OUT OF TIME DENIED.
