United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 18, 2004

Charles R. Fulbruge III Clerk No. 03-50878 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO DE HOYOS-GARCIA, also known as Fernando De-Hoves, also known as Victor Fernando De-Hoyos, also known as Fernando Garcia, also known as Juan Renteria, also known as Richard Castillo, also known as Henry Garza, also known as Fernando Garza, also known as Fernando Garcia-Hoyas, also known as Fernando De Hoyos-Garcia,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-03-CR-130-ALL-FB --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Fernando De Hoyos-Garcia appeals the sentence imposed

following his guilty plea conviction of being found in the United

States after deportation/removal in violation of

.

De Hoyos-Garcia contends that

(a) and

(b) define separate offenses. He argues that the prior

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-50878 -2-

conviction that resulted in his increased sentence is an element

of a separate offense under

(b) that should have

been alleged in his indictment. De Hoyos-Garcia 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.

.

De Hoyos-Garcia 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 No. 03-50878 -3-

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.