IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-41065 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARMEN HERNANDEZ-BAUTISTA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-181-1 -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Carmen Hernandez-Bautista appeals his guilty plea conviction

and sentence for being found in the United States after

deportation/removal in violation of

. Hernandez-

Bautista 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 from the statute. He asks us

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41065 -2-

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.

.

Hernandez-Bautista 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.” Dabeit,

(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.