IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 02-50230
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

OSWALDO REY BALAM-UN,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. EP-01-CR-1815-ALL-DB
                       --------------------
                          August 22, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

     Oswaldo Rey Balam-Un 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.     He contends

that the sentence is invalid because it exceeds the two-year

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

Balam-Un 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.    He argues that the

sentencing provision violates the Due Process Clause.

     *
        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that this opinion should not be published and is not precedent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. 02-50230
                                -2-

Alternatively, Balam-Un contends that 8 U.S.C. § 1326(a) and

8 U.S.C. § 1326(b)(2) define separate offenses.    He argues that

the aggravated felony conviction that resulted in his increased

sentence was an element of the offense under 8 U.S.C.

§ 1326(b)(2) that should have been alleged in his indictment.

     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.    

Balam-Un acknowledges that his arguments are 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 arguments 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.