IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10697 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

JERRY LEE THOMPSON, also known as Chief,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 6:92-CR-7-C -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jerry Lee Thompson appeals the five-year term of

imprisonment imposed following the revocation of his supervised

release. He complains that his original sentence, imposed under

(b)(1)(B), is unconstitutional and should not have

been used in calculating his sentence following revocation.

Thompson argues that his original sentence is invalid

because

(b) was rendered facially unconstitutional

by Apprendi v. New Jersey,

(2000). Thompson

argues that he should have been sentenced under the more lenient

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-10697 -2-

terms of

(b)(1)(C). Thompson did not challenge

his original sentence based on the constitutionality of

(b), either by direct appeal or collateral review. He may

not do so on appeal from the revocation of supervised release.

See United States v. Moody,

(5th Cir. 2001).

Thompson further argues that his original sentence is

invalid because it was enhanced based on his prior felony drug

conviction. Thompson contends that the sentence violates

Apprendi because the fact of his prior conviction was an element

of the offense that should have been charged in his indictment.

Thompson’s argument is foreclosed by Almendarez-Torres v. United

States,

(1998), which held that a prior

conviction need not be treated as an element of the offense.

Apprendi did not overrule Almendarez-Torres. Apprendi,

. This court must follow Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.”

United States v. Dabeit,

(5th Cir. 2000)

(internal quotation marks and citation omitted), cert. denied,

(2001).

In lieu of filing an appellee’s brief, the Government has

filed a motion asking us to dismiss this appeal or, in the

alternative, to summarily affirm the district court’s judgment.

The Government’s motion to dismiss is DENIED. The motion for a

summary affirmance is GRANTED. The judgment of the district

court is AFFIRMED. The Government need not file an appellee’s

brief.

MOTION TO DISMISS DENIED; MOTION FOR SUMMARY AFFIRMANCE GRANTED; AFFIRMED.