                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  December 10, 2003

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 03-50582
                        Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

BRENDA YANEZ-GONZALEZ, also known
as Brenda Gonzalez-Yanez,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. EP-03-CR-323-ALL-PRM
                       --------------------

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

PER CURIAM:*

    Brenda Yanez-Gonzalez appeals the sentence imposed following

her guilty plea conviction of being found in the United States

after deportation/removal in violation of 8 U.S.C. § 1326.

Yanez-Gonzalez contends that 8 U.S.C. § 1326(a) and 8 U.S.C.

§ 1326(b) define separate offenses.    She argues that the prior

conviction that resulted in her increased sentence is an element

of a separate offense under 8 U.S.C. § 1326(b) that should have


     *
        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that this opinion should not be published and is not precedent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. 03-50582
                                 -2-

been alleged in her indictment.    Yanez-Gonzalez maintains that

she pleaded guilty to an indictment which charged only simple

reentry under 8 U.S.C. § 1326(a).    She argues that her 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.

Yanez-Gonzalez acknowledges that her 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).

She seeks to preserve her 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.”    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.
