IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50922 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GILBERTO CORTEZ-VILLANUEVA, also known as Manuel Torres-Torres, also known as Jorge Antonio Cortez-Villanueva,

Defendant-Appellant.

Consolidated with No. 02-50923

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GILBERTO CORTEZ-VILLANUEVA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-01-CR-592-ALL USDC No. SA-02-CR-133-ALL -------------------- February 20, 2003

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

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent No. 02-50922 c/w 02-50923 -2-

In this consolidated appeal, Gilberto Cortez-Villanueva

challenges the sentence imposed following his guilty plea

conviction of being found in the United States after

deportation/removal in violation of

. Cortez-

Villanueva 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. Cortez-Villanueva 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.

.

Cortez-Villanueva 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

except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-50922 c/w 02-50923 -3-

“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.