IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-51092 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO ROMERO-RAMIREZ, also known as Sergio Romero, also known as Sergio Sanchez-Perez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-1020-ALL-DB -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Sergio Romero-Ramirez appeals the sentence imposed following

his guilty plea conviction of being found in the United States

after removal in violation of

. Romero-Ramirez

argues that his sentence should not have been enhanced pursuant

to

(b)(2) based on his prior removal 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-51092 -2-

(b)(2). Romero-Ramirez 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.

.

Romero-Ramirez 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). Romero-Ramirez 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.