IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40911 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GARCIA-LOPEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-995 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Garcia-Lopez appeals his guilty plea conviction and

sentence for being found in the United States after deportation

in violation of

. Garcia-Lopez 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40911 -2-

from the statute. He asks us to vacate his 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.

.

Garcia-Lopez 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). This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”

(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.