               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 02-10705
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ALBERTO LOPEZ-RIOS, also known as Manuel Natividad,
also known as Manuel Aguilar-Natividad, also known
as Alberto Rios-Lopez, also known as Albert Lopez,
also known as Jesus Alberto Mendoza, also known as
Jesus Armendariz-Rios, also known as Miguel Aguire,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:01-CR-395-1-M
                      --------------------
                        December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Alberto Lopez-Rios 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.     Lopez-Rios

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


     *
        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that this opinion should not be published and is not precedent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. 02-10705
                                 -2-

alleged in his indictment and included in the factual basis of

his guilty plea.    Lopez-Rios 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.

Lopez-Rios 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.

       In lieu of filing an appellee’s brief, the Government has

filed a motion asking this court to dismiss this appeal or, in

the alternative, to summarily affirm the district court’s

judgment.    The Government’s motion to dismiss is DENIED.    The
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                               -3-

motion for a summary affirmance is GRANTED.   The Government need

not file an appellee’s brief.

     AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
     AFFIRMANCE GRANTED.
