                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                                                                April 23, 2003
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                    Clerk


                              No. 02-51040
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

RICARDO FIGUEROA-AGUIRRE,

                                           Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                       USDC No. EP-02-CR-912-1-DB
                          --------------------


Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Ricardo Figueroa-Aguirre appeals the sentence imposed

following his guilty plea conviction of attempting to illegally

reenter the United States after deportation/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).     Figueroa-Aguirre complains

that his sentence was improperly enhanced pursuant to 8 U.S.C.

§ 1326(b).     He argues that the sentencing provision is


     *
        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that this opinion should not be published and is not precedent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. 02-51040
                                 -2-

unconstitutional.    Alternatively, Figueroa-Aguirre contends that

8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b) define separate

offenses.    He argues that the prior conviction that resulted in

his increased sentence was an element of a separate offense under

8 U.S.C. § 1326(b) 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.

Figueroa-Aguirre 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).    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 an appellee’s brief not be required.    The motion is GRANTED.

       AFFIRMED; MOTION GRANTED.
