               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 02-20118
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

FRANCISCO JAVIER AGUILAR-DOZAL,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-01-CR-650
                      --------------------
                        December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Francisco Javier Aguilar-Dozal appeals the sentence imposed

following his conviction of being found in the United States

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

raises two issues on appeal:   (1) that the sentencing provisions

in 8 U.S.C. § 1326(b) are unconstitutional on their face and as

applied in his case and (2) that the district court should have

suppressed the evidence of his prior administrative deportation



     *
       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this opinion should not be published and is not precedent except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. 02-20118
                               - 2 -

because he was deprived of due process during his 8 U.S.C. § 1228

administrative deportation proceeding.    Aguilar-Dozal concedes

that his arguments are foreclosed by this court’s precedent.     He

raises the issues to preserve them for Supreme Court review.

     In Almendarez-Torres v. United States, 523 U.S. 224, 239-47

(1998), the Supreme Court held that the sentencing provisions in

8 U.S.C. § 1326(b) do not violate the Due Process Clause.

Contrary to Aguilar-Dozal’s suggestion, that decision was not

overruled by Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000).

See 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).    Aguilar-Dozal’s

argument that the sentencing provisions in 8 U.S.C. § 1326(b) are

unconstitutional is indeed foreclosed.

     In United States v. Benitez-Villafuerte, 186 F.3d 651, 656-

60 (5th Cir. 1999), this court held that the administrative

deportation procedures set forth in 8 U.S.C. § 1228 comport with

due process and that evidence of such deportation proceedings is

admissible in a subsequent criminal prosecution under 8 U.S.C.

§ 1326.   We are bound by this court's precedent absent an

intervening Supreme Court decision or a subsequent en banc

decision.   See United States v. Short, 181 F.3d 620, 624 (5th

Cir. 1999).   No such decision overruling Benitez-Villafuerte

exists.   Aguilar-Dozal’s argument that the district court should
                          No. 02-20118
                              - 3 -

have suppressed the evidence of his prior administrative

deportation is also foreclosed.

     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.   The

judgment of the district court is AFFIRMED.

     MOTION GRANTED; AFFIRMED.
