United States Court of Appeals Fifth Circuit F I L E D April 23, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-50535 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FELIPE NAJERA-ARELLANO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. P-02-CR-10-ALL -------------------- Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:* Felipe Najera-Arellano appeals the sentence imposed following his guilty plea conviction of being found in the United States after deportation in violation of 8 U.S.C. § 1326. Najera argues that the “aggravated felony” provisions of 8 U.S.C. § 1326(b)(2) are unconstitutional.

Najera acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but asserts that the decision has been cast into doubt by Apprendi

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50535 -2- v. New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his argument for further review.

Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (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.