IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50710 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAUL ELIAS-MUNOZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-220-1-PRM -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Raul Elias-Munoz appeals the sentence imposed following his

guilty plea conviction of being found in the United States after

removal in violation of

. He contends that the

sentence is invalid because it exceeds the two-year maximum term

of imprisonment prescribed in

(a). Elias-Munoz

complains that his sentence was improperly enhanced pursuant to

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

aggravated felony conviction. He argues that the sentencing

provision is unconstitutional. Alternatively, Elias-Munoz

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50710 -2-

contends that

(a) and

(b)(2) define

separate offenses. He argues that the aggravated felony

conviction that resulted in his increased sentence was an element

of the offense under

(b)(2) that should have been

alleged in his indictment.

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.

.

Elias-Munoz acknowledges that his arguments are 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 arguments 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.

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.