                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          MAR 6 2002
                           FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

    v.                                                  No. 01-1143
                                                 (D.C. No. 00-CR-485-WM)
    WAYNE ANTHONY JONES,                               (D. Colorado)

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before BRISCOE and BALDOCK, Circuit Judges,           and ALLEY, Senior District
Judge. **



         Wayne Jones appeals a sentence enhanced under 8 U.S.C. § 1326(b)(2)

after he was convicted of illegal re-entry into the United States by a deported

alien under 8 U.S.C. § 1326(a). We exercise jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1921, and affirm.




*
      This order and judgment is not binding precedent, except under the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.
**
       The Honorable Wayne E. Alley, Senior District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
       The sole issue presented is whether the district court erred in applying the

sentence enhancement provision of § 1326(b)(2) after finding appellant guilty of

violating § 1326(a) only.   1
                                Appellant challenges the trial court’s ruling that an

alleged violation of § 1326(b)(2) in the indictment may be regarded as surplusage

and withdrawn by the prosecution at trial, but may be used later at sentencing to

determine the defendant’s sentence. Our review of this legal ruling is       de novo .

United States v. Jackson , 240 F.3d 1245, 1247 (10th Cir. 2001). We conclude

that the district judge was correct under existing precedent.

       The Supreme Court held in       Almendarez-Torres v. United States   , 523 U.S.

224, 235 (1998), that subsection (b) of the statute creates grounds for sentence

enhancements and not separate offenses. Specifically, subsection (b)(2) is not an

essential element of a crime under subsection (a) that must be proven beyond a

reasonable doubt; it is merely a sentencing factor based on recidivism.       Id. at 239.

Recently, in Apprendi v. New Jersey , 530 U.S. 466 (2000), the Court announced a

rule that facts used to enhance the penalty for a crime beyond the statutory

maximum must be submitted to a jury and proved beyond a reasonable doubt.

The Court expressly carved out an exception to this rule when the enhancement


1
  Subsection (a) of the statute makes it a felony punishable by a maximum prison
sentence of two years for an alien to re-enter the United States after deportation
without the consent of the Attorney General. Subsection (b)(2) authorizes a
maximum prison sentence of twenty years if the deportation occurred after the
alien was convicted of an aggravated felony.

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factor is a prior conviction, based on its previous decision in      Almendarez-Torres .

Apprendi , 530 U.S. at 489-90. Accordingly, in        United States v. Martinez-Villalva       ,

232 F.3d 1329, 1332 (10th Cir.2000), we found ourselves “bound by

[Almendarez-Torres ] to hold that the fact of defendant's prior felony conviction is

not an element of the offense [under § 1326(a)] with which he was charged by

indictment, but is, instead, a sentencing factor." Again in       United States v. Dorris ,

236 F.3d 582, 587 (10th Cir.2000),        cert. denied , 121 S. Ct. 1635 (2001), and

United States v. Wilson , 244 F.3d 1208, 1216 (10th Cir. 2001), we rejected

challenges to the continued validity of      Almendarez-Torres .

       Appellant, however, distinguishes       Almendarez-Torres, Martinez-Villalva        ,

and cases applying them because there a violation of § 1326(b)(2) was not

charged in the indictment. Here, appellant was indicted both for violating 8

U.S.C. § 1326(a) and (b)(2), and allegations of a prior felony conviction were

included in the indictment. The prosecutor also treated these allegations as an

element of the offense in pretrial filings. Appellant waived a jury trial. Then at

the bench trial, the government took the position that subsection (b)(2) allegations

in the indictment were surplusage and relevant only to any sentence. The district

court accepted the government’s position and found appellant guilty of a

§ 1326(a) offense only. Then for sentencing, the district judge received evidence




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of a prior aggravated felony, found proof of the § 1326(b) enhancement, and

imposed a prison sentence of 77 months according to the Sentencing Guidelines.

       Appellant argues that the government’s decision to include § 1326(b)(2)

allegations in the indictment only to withdraw them at trial is equivalent to an

acquittal of the recidivist charge and prohibits its use at sentencing. He contends

that no procedural rule permits a prosecutor to strike charges from a grand jury

indictment. Cf. Fed. R. Crim. P. 7(d) (allowing surplusage to be stricken from an

indictment on motion of the defendant). The government relies on     United States

v. McVeigh , 153 F.3d 1166, 1195-96 (10th Cir. 1998), to contend that surplusage

in an indictment need not be proved. In reply, appellant argues that, unlike

McVeigh , the prior aggravated felony language of the indictment was not

surplusage and, once charged by the grand jury, had to be proven at trial or

abandoned completely. Otherwise, he says, the prosecutor has abused the grand

jury process.

       We are unpersuaded by appellant’s arguments, the last of which is

unsupported by any citation of legal authority.   McVeigh is controlling under the

circumstances of this case. Questions were presented in    McVeigh whether “intent

to kill” was an element of the mass destruction crimes charged in the indictment

and, if not, whether the government nevertheless was bound to prove this intent

because it was charged in the indictment. We held that the statutory phrase “if


                                            -4-
death results” was a sentencing factor rather than an element of the offense and

that proof of an intent to kill was not required to prove a violation of the statute.

We reasoned that evidence needed to trigger the death penalty did not have to be

presented during the guilt phase of trial, and inclusion in the indictment of a level

of intent beyond the elements of the crime was immaterial because it was mere

surplusage. McVeigh , 153 F.3d at 1194-96. We relied on Supreme Court

authority holding that it is not an unconstitutional amendment of an indictment

“to drop from [it] those allegations that are unnecessary to an offense that is

clearly contained within it.”   United States v. Miller , 471 U.S. 130, 144 (1985).

       We thus find no error in the district court’s ruling that the government was

not required to prove a violation of § 1326(b) during the trial simply because it

was alleged in the indictment, but that it could nevertheless be used later as a

sentence enhancement.

       The sentence imposed by the United States District Court for the District of

Colorado is AFFIRMED.



                                                      Entered for the Court



                                                      Wayne E. Alley
                                                      Senior District Judge



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