United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 10, 2003

Charles R. Fulbruge III Clerk No. 03-40844 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GUADALUPE HERNANDEZ-VELASQUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-92-1 --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Guadalupe Hernandez-Velasquez appeals the sentence

imposed following his guilty plea conviction of being found in

the United States after deportation/removal in violation of

. Hernandez-Velasquez contends that the portions

of

that raise the statutory maximum sentence on

the basis of prior convictions are unconstitutional. He argues

that his sentence exceeds the maximum term of imprisonment and

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40844 -2-

supervised release that may be imposed under

(a)(2).

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-Velasquez acknowledges that his arguments are

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 arguments 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.