                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          SEP 4 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 00-8053
v.
                                                  (District of Wyoming)
                                                (D.C. No. 00-CR-46-01-D)
RAFAEL PEREZ-AGUIRRE, also
known as Bardomiano Perez-Macedo,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before MURPHY, PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.



I. INTRODUCTION

      Defendant-appellant Rafael Perez-Aguirre entered a guilty plea to illegally

reentering the United States following deportation and prior conviction for an

aggravated felony in violation of 8 U.S.C. §§ 1326(a)(2) and 1326(b)(2). The



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
district court sentenced Perez-Aguirre to seventy months imprisonment. On

appeal, Perez-Aguirre challenges the district court’s refusal to depart from the

sentencing guidelines and the enhancement of his sentence based on a prior

aggravated felony conviction that was not charged in the indictment. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the district court as

to the sentence enhancement issue but lacks the authority to exercise jurisdiction

as to the departure issue.

II. BACKGROUND

      Perez-Aguirre was stopped for speeding near Powell, Wyoming. During the

course of the traffic stop, the patrolman conducted a consensual search of the

vehicle and discovered a fraudulent Social Security card and a fraudulent alien

registration card. Perez-Aguirre was arrested and identified as a previously

deported alien who had been convicted of a controlled substance felony. The

records revealed that Perez-Aguirre had not received permission by the Attorney

General to reenter the United States.

      Perez-Aguirre was indicted for (1) illegally reentering the United States

following deportation and prior conviction for an aggravated felony, (2)

knowingly and willfully using a fraudulent alien registration card, and (3)

knowingly and falsely, with intent to deceive, using a social security account

number not assigned to him. Perez-Aguirre pleaded guilty to the first charge, and


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the government dismissed the other two counts in the indictment. At the

sentencing hearing, Perez-Aguirre requested a downward departure from the

sentencing guidelines, which the district court refused to grant. Perez-Aguirre

was sentenced to seventy months imprisonment.

III. DISCUSSION

      On appeal, Perez-Aguirre challenges the district court’s refusal to grant a

downward departure from the sentencing guidelines. He claims the district court

refused to recognize its authority and responsibility to grant the departure, which

he requested in light of his rehabilitation, family situation, community

involvement, and employment history. This court may exercise jurisdiction to

review a sentencing court’s refusal to depart from the sentencing guidelines only

when “the district court states that it does not have any authority to depart from

the sentencing guideline range for the entire class of circumstances proffered by

the defendant.” United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998).

      During the sentencing hearing, the district court in this case heard

arguments from Perez-Aguirre and the government regarding the defendant’s

request for a downward departure. The transcript of the hearing clearly

demonstrates that the sentencing court considered Perez-Aguirre’s circumstances

but ultimately determined that there was nothing about the defendant “that takes

him outside the heartland of cases in any respect.” There is nothing in the record


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to support Perez-Aguirre’s assertion that the district court misunderstood its

authority to depart from the sentencing guidelines. Thus, this court has no

jurisdiction to review Perez-Aguirre’s departure claim.

      Perez-Aguirre also alleges his constitutional rights were violated because

his sentence was enhanced under 8 U.S.C. § 1326(b)(2) due to a prior aggravated

felony conviction that was not included as an element of the charged crime in the

indictment. Perez-Aguirre further asserts the district court should have advised

him that he was entitled to a jury determination on the element of his prior

conviction. In Almendarez-Torres v. United States, the Supreme Court held that

the increased punishment for a prior deportation after commission of an

aggravated felony under 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a

separate element of the charged offense which must be included in the indictment

and for which there must be a jury determination. See 523 U.S. 224, 230-35

(1998); see also United States v. Martinez-Villalva, 232 F.3d 1329, 1331-32 (10th

Cir. 2000) (holding that Supreme Court’s decision in Almendarez-Torres was

unaffected by the Supreme Court’s later decision in Apprendi v. New Jersey, 530

U.S. 466 (2000)). Thus, Perez-Aguirre’s claim is without merit.

IV. CONCLUSION

      For the foregoing reasons, this court may not exercise jurisdiction to review

the district court’s refusal to depart from the sentencing guidelines. With respect


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to the sentence enhancement at issue, this court AFFIRMS the district court.



                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




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