
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Marcelino VENEGAS-HERNANDEZ, also known as Emilio Fernandez, Defendant-Appellant.
    No. 03-50631.
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Feb. 18, 2004.
    Joseph H. Gay, Jr., Assistant US Attorney, US Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.
    Robert J. Perez, El Paso, TX, for Defendant-Appellant.
    Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
   PER CURIAM.

Jose Marcelino Venegas-Hernandez 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. VenegasHernandez contends that 8 U.S.C. § 1326(b)(2) is an unconstitutional sentencing provision. He argues that his sentence exceeds the two-year maximum term of imprisonment which may be imposed under 8 U.S.C. § 1326(a).

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, 118 S.Ct. 1219. Venegas-Hernandez acknowledges that his argument is foreclosed by AlmendarezTorres, 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 argument for further review.

Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     