IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11574 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS ORTIZ-DE LA ROSA, also known as Jose Luis Ortiz, also known as Jose Luis De La Rosa,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:01-CR-274-1-G -------------------- February 20, 2003

Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Luis Ortiz-De La Rosa appeals the sentence imposed

following his guilty plea conviction of being found in the United

States after deportation/removal in violation of

.

Ortiz-De La Rosa contends that

(a) and

(b) define separate offenses. He argues that the prior

conviction that resulted in his increased sentence is an element

of a separate offense under

(b) that should have

been alleged in his indictment and included in the factual basis

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11574 -2-

of his guilty plea. Ortiz-De La Rosa 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.

.

Ortiz-De La Rosa 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.

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.

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