IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-10814

Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

ALVIRTIS SMITH, JR., Defendant-Appellant.

Appeal from the United States District Court For the Northern District of Texas USDC No. 5:00-CR-25-1-C

April 2, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Alvirtis Smith, Jr. appeals his conviction following a guilty

plea for possessing a firearm after having been convicted of a

felony.1 Smith contends that, because his three prior drug-

trafficking convictions were not alleged in the indictment, the

district court erroneously sentenced him to a fifteen-year prison

term pursuant to

(e). Smith concedes that in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 See

(g) (2000). Almendarez-Torres v. United States,2 the Supreme Court held that a

prior felony conviction under

(b)(2) was merely a

sentencing factor and thus need not be alleged in the indictment.

He observes, however, that the Supreme Court in Apprendi v. New

Jersey3 stated that "it is arguable that Almendarez-Torres was

incorrectly decided." Smith concedes that Almendarez-Torres

forecloses the issue, and raises it only to preserve his right to

further review by the Supreme Court.

This Court has held that "[b]ecause § 924(e)(1) does not

create a separate offense but is merely a sentence enhancement

provision, the three previous convictions required by § 924(e) are

not an element of the [§ 922(g)] offense."4 Our precedent

consequently disposes of Smith's appeal. "[O]ne panel of this Court

cannot disregard the precedent set by a prior panel even if it

disagrees with the prior panel decision. Absent an overriding

Supreme Court decision or a change in the statutory law, only the

court sitting en banc can do this."5 We must therefore AFFIRM the

district court's judgment.

2

(1998). 3

,

(2000). 4 United States v. Affleck,

(5th Cir. 1988); accord United States v. Dorris,

(10th Cir. 2000). 5 Girard v. Drexel Burnham Lambert, Inc.,

(5th Cir. 1986).

2 AFFIRMED.

3