IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50508 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ESTEBAN MARQUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-02-CR-10-1-SS -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Esteban Marquez appeals the sentence imposed following his

guilty plea conviction of being found in the United States after

deportation in violation of

. Marquez complains

that his sentence was improperly enhanced pursuant to

(b)(2) based on his prior deportation following an

aggravated felony conviction. Marquez argues that the sentencing

provision violates the Due Process Clause because it permitted

the sentencing judge to find, under a preponderance of the

evidence standard, a fact which increased the statutory maximum

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50508 -2-

sentence to which he otherwise would have been exposed. Marquez

thus contends that his sentence is invalid and argues that it

should not exceed the two-year maximum term of imprisonment

prescribed in

(a).

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.

.

Marquez acknowledges that his argument is foreclosed by

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

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

AFFIRMED; MOTION GRANTED.