IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40290 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PASCUAL BARRERA-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-473-1 -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Pascual Barrera-Hernandez appeals his guilty plea conviction

and sentence for being found in the United States after

deportation in violation of

. Barrera-Hernandez

argues that the sentencing provisions in

(b) are

unconstitutional on their face and as applied in his case. He

contends that the unconstitutional portions of

should be severed from the statute. He asks us to vacate his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40290 -2-

conviction and sentence, reform the judgment to reflect a

conviction only under

(a), and remand his case for

resentencing under that provision.

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.

.

Barrera-Hernandez acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been called

into doubt by Apprendi v. New Jersey,

(2000). He 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.” Id. at 984 (internal

quotation marks and citation omitted). Accordingly, the judgment

of the district court is AFFIRMED.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. The Government asks that an

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

AFFIRMED; MOTION GRANTED.