               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-51095
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,
versus

MIGUEL ANGEL HERRERA-TORRES, also known as Miguel Herrera-Torres,
also known as Martin Lopez-Ayala, also known as Miguel Angel
Herrera-Torres,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. P-00-CR-119-ALL-F
                       --------------------
                           June 19, 2002

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

PER CURIAM:*

     Miguel Angel Herrera-Torres was convicted pursuant to a

guilty plea of being found in the United States after removal in

violation of 8 U.S.C. § 1326.   The district court granted a

downward departure and sentenced him to two-years’ imprisonment.

A panel of this court held that the district court abused its

discretion in departing downward, vacated the sentence, and

remanded the case for resentencing.   Herrera-Torres now appeals

the increased sentence imposed following remand.


     *
        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that this opinion should not be published and is not precedent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. 01-51095
                                -2-

     Herrera-Torres 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.    Herrera-Torres

maintains that he pleaded guilty to an indictment which charged

only simple 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.

Herrera-Torres 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
                         No. 01-51095
                               -3-

that the judgment of the district court be affirmed and that an

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

     AFFIRMED; MOTION GRANTED.
