IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10019 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE ONTIVEROS-SOTO, also known as Jorge Onteberos Soto,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:01-CR-146-1-X -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jorge Ontiveros-Soto appeals the sentence imposed following

his guilty plea conviction of being found in the United States

after removal in violation of

. Ontiveros-Soto

contends that

(a) and

(b)(2) define

separate offenses. He argues that the aggravated felony

conviction that resulted in his increased sentence is an element

of the offense under

(b)(2) that should have been

alleged in his indictment and included in the factual basis of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10019 -2-

his guilty plea. Ontiveros-Soto maintains that he pleaded guilty

to an indictment which charged only 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.

.

Ontiveros-Soto 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). 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.

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

filed a motion asking this court 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 Government need

not file an appellee’s brief. No. 02-10019 -3-

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