
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Antonio AUGIRRE-NOYOLA, also known as Jose Antonio Aguirre-Nojola, also known as Jose Antonio Aguirre Noyola, Defendant-Appellant.
    No. 03-50475.
    Conference Calendar
    United States Court of Appeals, Fifth Circuit.
    Oct. 22, 2003.
    Joseph H. Gay, Jr., Assistant US Attorney, US Attorney’s Office Western District of Texas, San Antonio, TX, for PlaintiffAppellee.
    Lucien B. Campbell, Federal Public Defender, Donna F. Coltharp, Federal Public Defender’s Office, Western District of Texas, San Antonio, TX, for D efendant-App ellant.
    Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
   PER CURIAM

Jose Antonio Aguirre-Noyola 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. Aguirre-Noyola 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 his indictment. Aguirre-Noyola 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 two-year maximum term of imprisonment 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. Aguirre-Noyola 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 his 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. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except trader the limited circumstances set forth in 5th Cir. R. 47.5.4.
     