IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 01-50627
                         Conference Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

JOSE OSCAR ZAMORANO-GRAJEDA,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. EP-01-CR-35-ALL-DB
                       --------------------
                          April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Jose Oscar Zamorano-Grajeda appeals the sentence imposed

following his guilty plea conviction of attempting to illegally

reenter the United States after deportation in violation of

8 U.S.C. § 1326.    Zamorano-Grajeda complains that his sentence

was improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based

on his prior deportation following an aggravated felony

conviction.    Zamorano-Grajeda argues that the sentencing

provision violates the Due Process Clause because it permitted

the sentencing judge to find, under a preponderance of the


     *
        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that this opinion should not be published and is not precedent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. 01-50627
                                -2-

evidence standard, a fact which increased the statutory maximum

sentence to which he otherwise would have been exposed.

Zamorano-Grajeda thus contends that his sentence is invalid and

argues that it should not exceed the two-year maximum term of

imprisonment prescribed in 8 U.S.C. § 1326(a).

     In Almendarez-Torres v. United States, 

, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses.   The Court further held that the sentencing

provisions do not violate the Due Process Clause.    

Zamorano-Grajeda acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been cast

into doubt by Apprendi v. New Jersey, 

, 490 (2000).

He seeks to preserve his argument for further review.

     Apprendi did not overrule Almendarez-Torres.    See 

; United States v. Dabeit, 

, 984

(5th Cir. 2000), cert. denied, 

(2001).    This court

must follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.”    

(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 the judgment of the district court be affirmed and that an

appellee’s brief not be required.    The motion is GRANTED.

     AFFIRMED; MOTION GRANTED.