                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 12, 2002

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                            No. 01-41275
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JOSE MANUEL MARTINEZ-REYES,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-01-CR-449-1
                      --------------------

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Manuel Martinez-Reyes appeals his guilty plea

conviction and sentence for being found in the United States

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

Reyes argues that the sentencing provisions in 8 U.S.C. § 1326(b)

are unconstitutional on their face and as applied in his case.

He contends that the unconstitutional portions of 8 U.S.C. § 1326

should be severed from the statute.   He asks us to vacate his


     *
       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this opinion should not be published and is not precedent except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. 01-41275
                                 -2-

conviction and sentence, reform the judgment to reflect a

conviction only under 8 U.S.C. § 1326(a), and remand his case for

resentencing under that provision.

       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-Reyes acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been called

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 489-90

(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.”    Id. at 984 (internal quotation marks and citation omitted).

Accordingly, the judgment of the district court is AFFIRMED.

       The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.    The Government asks that an

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

       AFFIRMED; MOTION GRANTED.
