                                                       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. 02-51171
                        Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

JOSE QUINTANA VALENZUELA-DE LA CRUZ,
also known as Jose Quintana-De La Cruz,
also known as Jose Quintana-Valenzuela,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. EP-02-CR-1142-1-PRM
                       --------------------


Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Jose Quintana Valenzuela-De La Cruz appeals the sentence

imposed following his guilty plea conviction of being found in

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).   Valenzuela-De La Cruz

complains that his sentence was improperly enhanced pursuant to


     *
        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that this opinion should not be published and is not precedent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. 02-51171
                                 -2-

8 U.S.C. § 1326(b).    He argues that the sentencing provision is

unconstitutional.    Alternatively, Valenzuela-De La Cruz 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.

Valenzuela-De La Cruz 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.
                     No. 02-51171
                          -3-

AFFIRMED; MOTION GRANTED.
