
    UNITED STATES of America, Plaintiff-Appellee, v. Edgar Alfredo RODRIGUEZ-QUINTANA, Defendant-Appellant.
    No. 03-10481
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Oct. 22, 2003.
    Denise B. Williams, US Attorney’s Office, Northern District of Texas, Lubbock, TX, for Plaintiff-Appellee.
    Jerry V. Beard, Assistant Federal Public Defender, Federal Public Defender’s Office, Northern District of Texas, Lubbock, TX, for Defendant-Appellant.
    Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
   PER CURIAM:

Edgar Alfredo Rodriguez-Quintana 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. RodriguezQuintana 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 is an element of a separate offense under 8 U.S.C. § 1326(b) that should have been alleged in Ms indictment. Rodríguez-Quintana maintains that he pleaded grnlty to an mdictment wMeh charged oMy simple reentry under 8 U.S.C. § 1326(a). He argues that Ms sentence exceeds the 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 m 8 U.S.C. § 1326(b) are sentencmg provisions, not elements of separate offenses. The Court further held that the sentencmg provisions do not violate the Due Process Clause. Id. at 239-47. Rodriguez-Qumtana 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He seeks to preserve Ms argument for further review.

Apprendi did not overrule AlmendarezTorres. 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 “uMess and until the Supreme Court itself determmes to overrule it.” Dabeit, 231 F.3d at 984 (mternal quotation marks and citation omitted). The judgment of the district court is AFFIRMED.

The Government has moved for a summary affirmance m 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.
     