IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50927 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GUADALUPE MONSIVAIS-CARBAJAL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-723-ALL-PRM -------------------- February 20, 2003

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

PER CURIAM:*

Jose Guadalupe Monsivais-Carbajal appeals the sentence

imposed following his guilty plea conviction of attempting to

illegally reenter the United States after deportation/removal in

violation of

. Monsivais-Carbajal 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. Monsivais-Carbajal maintains that he pleaded guilty

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50927 -2-

to an indictment which charged only simple attempted 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.

.

Monsivais-Carbajal 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 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.