IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50892 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS FUENTES-PICON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-01-CR-215-ALL -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jose Luis Fuentes-Picon appeals the sentence imposed

following his guilty plea conviction of being found in the United

States after deportation in violation of

.

Fuentes-Picon argues that his sentence should not have been

enhanced pursuant to

(b)(2) based on his prior

deportation following an aggravated felony conviction. He

asserts that

(a) and

(b) define

separate offenses and that an aggravated felony conviction is an

element of the offense under

(b)(2). Fuentes-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50892 -2-

Picon states that he pleaded guilty to an indictment which

charged simple reentry under

(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,

(1998), the Supreme Court held that the enhanced penalties in

(b) are sentencing provisions, not elements of

separate offenses. The Court further held that the sentencing

provisions do not violate the Due Process Clause.

.

Fuentes-Picon acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the validity of that decision

has been cast into doubt by Apprendi v. New Jersey,

(2000). Fuentes-Picon seeks to preserve his argument for

further review.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir. 2000), cert. denied,

(2001). This court

must follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.” Dabeit,

(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 the judgment of the district court be affirmed and that an

appellee’s brief not be required. The motion is GRANTED.

AFFIRMED; MOTION GRANTED.