
    UNITED STATES of America, Plaintiff-Appellee, v. Tirso PEREZ-OCANAS, Defendant-Appellant.
    No. 03-41123
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    April 21, 2004.
    James Lee Turner, Assistant US Attorney, David Hill Peck, US Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Roland E. Dahlin, II, Federal Public Defender, H. Michael Sokolow, Kyle Blair Welch, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before JOLLY, JONES, and SMITH, Circuit Judges.
   PER CURIAM:

Tirso Perez-Ocanas 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. Perez-Ocanas argues that 8 U.S.C. § 1326(b) is unconstitutional on its face and as applied to him. He thus contends that his sentence should not exceed the maximum term of imprisonment prescribed in 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. Perez-Ocanas 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. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     