United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 22, 2003

Charles R. Fulbruge III Clerk No. 03-50320 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOEL ROMERO-SID, also known as Noe Torres, also known as Joel Romero Sid, also known as Joel Arturo Sid, also known as Joel Sid-Romero, also known as Joel Ramirez Duarte, also known as Joe Fernandez, also known as Joel Fernando Gutierrez, also known as Noe Navarrete Torres, also known as Noe Nebarrete Torres, also known as Noe Navarette Torres,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-02-CR-271-ALL-SS --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

Joel Romero-Sid appeals the sentence imposed following his

guilty plea conviction of being found in the United States after

deportation/removal in violation of

. Romero-Sid

complains that his sentence was improperly enhanced pursuant to

(b) based on a prior conviction. He argues that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-50320 -2-

the sentencing provision is unconstitutional. Romero-Sid thus

contends that his sentence should not exceed the two-year maximum

term of imprisonment prescribed in

(a).

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.

.

Romero-Sid 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.