IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50722 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIANO RAMIREZ-RAMIREZ, also known as Juan Manuel Ramirez-Ramirez, also known as Manuel Medrano-Hernandez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-569-ALL-PRM -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Mariano Ramirez-Ramirez 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). Ramirez-Ramirez complains that his sentence was

improperly enhanced pursuant to

(b)(2) based on

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50722 -2-

his prior removal following an aggravated felony conviction. He

argues that the sentencing provision is unconstitutional.

Alternatively, Ramirez-Ramirez 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.

.

Ramirez-Ramirez 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.