                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 27 2004
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                            No. 03-4148
                                               (D. Ct. No. 1:03-CR-21-DAK)
 ANGEL GARIBAY-ANGUIANO, also                            (D. Utah)
 known as Angel Anguione-Gariba,
 also known as Jose Barajas, also
 known as Arturo Ortiz, also known as
 Roland Palomass, also known as
 Arturo Valencia,

               Defendant - Appellant.


                            ORDER AND JUDGMENT          *




Before TACHA , Chief Circuit Judge,     BRISCOE and HARTZ , Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       Defendant-Appellant Angel Garibay-Anguiano pleaded guilty to one count

of violating 8 U.S.C. § 1326, re-entry into the United States of a previously

removed alien. On appeal, Mr. Garibay-Anguiano challenges the sufficiency of

the indictment and the application of the     U.S. Sentencing Guidelines Manual

(2002) (“U.S.S.G.” or “the Guidelines”). We take jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), AFFIRM the judgment of the district

court, and GRANT Jon D. Williams’s motion to withdraw as counsel.

                                   I. BACKGROUND

       After Mr. Garibay-Anguiano pleaded guilty to violating 8 U.S.C. § 1326,

the government moved for a sentence enhancement under subsection b.         See 8

U.S.C. § 1326(b) (authorizing increased sentences for certain criminal activity or

suspected terrorist involvement committed by aliens who were previously

removed from the United States). The district court adopted the government’s

recommendation, which closely followed that of the pre-sentencing report. Next,

the district court, pursuant to the Guidelines, calculated Mr.   Garibay-Anguiano’s

offense level at twenty-one and issued a fifty-seven-month sentence, the lowest

time permitted for this offense level. Mr.     Garibay-Anguiano did not object to the

indictment or sentence enhancement before the district court.

       On appeal, Mr. Garibay-Anguiano, appearing pro se and through court-




                                             -2-
appointed counsel, 1 raises two general issues for consideration by this Court. 2

First, he challenges the sufficiency of his indictment because he believes it fails

to state in a plain, clear, and concise manner all of the charges against him.

Second, Mr. Garibay-Anguiano contends that the district court improperly

calculated his sentence enhancement. We address these arguments in turn.

                               II. STANDARD OF REVIEW

            Because Mr. Garibay-Anguiano raised neither of his issues on appeal in

the district court, we review them for plain error. United States v. Ruiz-Gea, 340

F.3d 1181, 1185 (10th Cir. 2003). “To notice plain error . . . the error must (1) be

an actual error that was forfeited; (2) be plain or obvious; and (3) affect

substantial rights . . . .”   United States v. Edgar , 348 F.3d 867, 871 (10th Cir.

2003). Even if these conditions are satisfied, we have discretion to reverse only if

the error “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.”      Id.




       Mr. Garibay-Anguiano’s court-appointed counsel, Mr. Williams, filed a
        1

motion for leave to withdraw as counsel pursuant to Anders v. California, 386
U.S. 738 (1967). In his brief to this Court, Mr. Williams provided a succinct
description of Mr. Garibay-Anguiano’s claims and stated that, in his view, this
appeal is meritless and frivolous. Finding that counsel has satisfied his
obligations under Anders, we GRANT Mr. Williams’s motion.

       In his brief, Mr. Garibay-Anguiano denotes five separate grounds for
        2

appeal. Four of these grounds, however, contest the adequacy of his indictment.
Thus, we discuss them together.

                                             -3-
                     III. SUFFICIENCY OF THE INDICTMENT

       Mr. Garibay-Anguiano argues that his indictment failed to contain the

clarity and specificity necessary to avoid constitutional error because it failed to

reference subsection b of 8 U.S.C. § 1326 or the factors set forth therein, which

the government relied on in its motion for a sentence enhancement. The

indictment did, however, reference § 1326 generally. “An indictment must set

forth each element of the crime that it charges. But it need not set forth factors

relevant only to the sentencing of an offender found guilty of the charged crime.”

Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998) (citation omitted).

The relevant question, therefore, is: did the Congress intend for § 1326(b) “to

help define a separate crime” from that set forth in § 1326(a) or to provide “a

factor that a sentencing court might use to increase punishment?”          Id.

       Addressing this precise question, the Supreme Court in         Almendarez-Torres

“conclude[d] that the subsection is a penalty provision, which simply authorizes a

court to increase the sentence for a recidivist. It does not define a separate crime.

Consequently, neither the statute nor the Constitution requires the Government to

charge the factor that it mentions, an earlier conviction, in the indictment.”    Id. at

226-27 (interpreting 8 U.S.C. § 1326(b)).

       We note, however, that in Apprendi v. New Jersey, 530 U.S. 466 (2000),

the Court expressed concern about the continuing validity of Almendarez-Torres.


                                             -4-
Apprendi, 530 U.S. at 489 (“[I]t is arguable that Almendarez-Torres was

incorrectly decided, and that a logical application of our reasoning today should

apply if the recidivist issue were contested.”). Nevertheless, the Court reasoned

that any due process or Sixth Amendment concerns—arising out of the judicial

determination of a “fact” that increased punishment beyond the statutory

maximum—were mitigated in Almendarez-Torres by “[b]oth the certainty that

procedural safeguards attached to any ‘fact’ of prior conviction, and the reality

that [the defendant] did not challenge the accuracy of that ‘fact’ in his case.” Id.

at 488. Thus, the Court did not overrule Almendarez-Torres in Apprendi; rather,

it made an exception from the general Apprendi-rule for “prior convictions.” Id.

at 489.

      The Ninth Circuit has drawn this same conclusion and noted:

      Because Apprendi preserves Almendarez-Torres as a ‘narrow
      exception’ to Apprendi’s general rule, we can conclude, at most, that
      Apprendi casts doubt on the continuing viability of
      Almendarez-Torres. If the views of the Supreme Court’s individual
      Justices and the composition of the Court remain the same,
      Almendarez-Torres may eventually be overruled. But such
      speculation does not permit us to ignore controlling Supreme Court
      authority. Unless and until Almendarez-Torres is overruled by the
      Supreme Court, we must follow it. United States v. Pacheco-Zepeda,
      234 F.3d 411, 414 (9th Cir. 2000).

      For these reasons, then, we reject   Mr. Garibay-Anguiano’s contention that

the government’s failure to include a specific reference to § 1326(b) and its

factors in its indictment is error.

                                           -5-
            IV. APPLICATION OF THE SENTENCING GUIDELINES

      Construing his pleadings liberally,    see Haines v. Kerner , 404 U.S. 519,

520-21 (1972), Mr. Garibay-Anguiano alleges that the district court improperly

enhanced his base offense level by sixteen points pursuant to U.S.S.G. §

2L1.2(b)(1)(A). This provision imposes a sixteen-point enhancement “[i]f the

defendant previously was deported . . . after . . . a conviction for a felony that is

(i) a drug trafficking offense for which the sentence imposed exceeded 13 months

. . .” U.S.S.G. § 2L1.2(b)(1). Mr. Garibay-Anguiano asserts that this provision

does not apply to him because, although he previously received a one to fifteen-

year prison sentence for trafficking cocaine, he was released on parole after

serving only eleven months in prison.

      Noting that no courts have ruled otherwise, we adopt the approach taken by

the Fifth Circuit in United States v. Mendez-Villa , 346 F.3d 568 (5th Cir. 2003),

the Third Circuit in United States v. Frias , 338 F.3d 206 (3d Cir. 2003), and the

Eight Circuit in United States v. Rodriguez-Arreola    , 313 F.3d 1064 (8th Cir.

2002), and hold that the term “sentence imposed” means the maximum term of

imprisonment given to a defendant at sentencing, not the actual time served.

Application Note 1 of U.S.S.G. § 2L1.2 specifically denotes the instances in

which courts should consider prior conviction factors other than the term of

imprisonment imposed at sentencing. “If all or any part of a sentence of


                                            -6-
imprisonment was probated, suspended, deferred, or stayed, ‘sentence imposed’

refers only to the portion that was not probated, suspended, deferred, or stayed.”

U.S.S.G. § 2L1.2, Application Note 1(A)(iv).    Unlike parole, however,

“[p]robation, suspension, and so forth are actions taken at the time of sentencing.

Thus, the Application Note tends to confirm that in this guideline, as in federal

criminal law generally, the term ‘sentence imposed’ means the sentence reflected

in the criminal judgment, not the sentence the defendant ultimately serves.”

Rodriguez-Arreola , 313 F.3d at 1066; see also Mendez-Villa , 346 F.3d at 570.   3



Thus, we do not consider the time actually served, but the time to which Mr.

Garibay-Anguiano was sentenced.

      Mr. Garibay-Anguiano also argues that his prior one to fifteen-year

sentence does not meet the requirements of U.S.S.G. § 2L1.2(b)(1)(A) because the

bottom range of his sentence falls below the requirement that “the sentence

imposed [must have] exceeded 13 months.” U.S.S.G. § 2L1.2(b)(1)(A). We

reject this argument because “the sentence imposed is the maximum term of



      3
         The recently enacted 2003 edition of the Guidelines, though not dispositive
in this appeal, see United States v. Zamudio, 314 F.3d 517, 518 (10th Cir. 2002)
(quoting U.S.S.G. § 1B1.11(a)), supports this conclusion. That edition defines
“sentence imposed” as synonymous with “sentence of imprisonment [as
discussed] in Application Note 2 and subsection (b) of § 4A1.2[.]” U.S.S.G. §
2L1.2, Application Note 1(B)(vii). Application Note 2 then holds that sentence of
imprisonment under the Guidelines is “based on the sentence pronounced, not the
length of time actually served.”  Id.

                                          -7-
imprisonment in an indeterminate sentence.”     Mendez-Villa , 346 F.3d at 570

(citations omitted); see also 8 U.S.C. § 1101(a)(48) (“Any reference to a term of

imprisonment or sentence with respect to an offense is deemed to include the

period of incarceration or confinement ordered by a court of law regardless of any

suspension of the imposition or execution of that sentence of imprisonment in

whole or in part.”); U.S.S.G. § 4A1.2, Application Note 2 (stating that for

purposes of § 4A1.2(a)-(c) “sentence imposed”, in the case of an indeterminate

sentence, is the maximum sentence). Because the prior maximum sentence

imposed on Mr. Garibay-Anguiano is fifteen-years, his enhancement does not run

afoul of U.S.S.G. § 2L1.2(b)(1)(A).

                                 V. CONCLUSION

      The indictment’s failure to specifically reference § 1326(b) or its factors is

not error. Further, the district court properly calculated Mr. Garibay-Anguiano’s

sentence under the Guidelines. Therefore, we AFFIRM the judgment of the

district court and GRANT Mr. Williams’s motion to withdraw as counsel.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Chief Circuit Judge




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