
    UNITED STATES of America, Plaintiff-Appellee, v. Francisco de la CERDA-GUERRERO, Defendant-Appellant.
    No. 02-21163.
    Conference Calendar
    United States Court of Appeals, Fifth Circuit.
    Aug. 20, 2003.
    James Lee Turner, Assistant US Attorney, Renata Ann Gowie, Assistant US Attorney, US Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Timothy William Crooks, Assistant Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Molly E. Odom, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before JONES, WIENER, and BENAVIDES, Circuit Judges.
   PER CURIAM.

Francisco De La Cerda-Guerrero 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. De La Cerda-Guerrero contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b) are unconstitutional. He argues that the prior conviction that resulted in his increased sentence is an element of a separate offense under 8 U.S.C. § 1326(b) that should have been alleged in his indictment. De La Cerda-Guerrero maintains that he pleaded guilty to an indictment which charged only simple reentry under 8 U.S.C. § 1326(a). He argues that his sentence exceeds the maximum term of imprisonment and supervised release which may be imposed for that offense.

In Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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. De La CerdaGuerrero 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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. 
      
       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.
     