               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-51234
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

FRANCISCO JAVIER RODARTE-RODRIGUEZ,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. EP-01-CR-1291-ALL-DB
                       --------------------
                           June 19, 2002

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

PER CURIAM:*

     Francisco Javier Rodarte-Rodriguez appeals the sentence

imposed following his guilty plea conviction of attempting to

illegally reenter the United States after removal in violation of

8 U.S.C. § 1326.   Rodarte-Rodriguez 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.

Rodarte-Rodriguez maintains that he pleaded guilty to an

     *
        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that this opinion should not be published and is not precedent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. 01-51234
                                 -2-

indictment which charged only simple attempted 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.

Rodarte-Rodriguez 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

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.
