               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-51245
                        Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JAVIER MARTINEZ-ULLOA,
also known as Javier Martinez-Zulloa,
also known as Javier Martinez-Venezuela,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. EP-01-CR-825-1
                       --------------------
                           June 19, 2002

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

PER CURIAM:*

     Javier Martinez-Ulloa appeals the sentence imposed following

his conviction of being found in the United States after removal

in violation of 8 U.S.C. § 1326.   He contends that the sentence

is invalid because it exceeds the two-year maximum term of

imprisonment prescribed in 8 U.S.C. § 1326(a).    Martinez-Ulloa

complains that his sentence was improperly enhanced pursuant to

8 U.S.C. § 1326(b)(2) based on his prior removal following an

aggravated felony conviction.   He argues that the sentencing

     *
        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that this opinion should not be published and is not precedent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. 01-51245
                                -2-

provision violates the Due Process Clause.    Alternatively,

Martinez-Ulloa 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 was an element of the offense under 8 U.S.C.

§ 1326(b)(2) that should have been alleged in his indictment.

     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.

Martinez-Ulloa acknowledges that his arguments are 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 arguments 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.

     AFFIRMED; MOTION GRANTED.
