                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUN 1 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-4154
                                                    (D.C. No. 00-CR-001-C)
    HECTOR CAMACHO-JIMINEZ, also                           (D. Utah)
    known as Hector J. Camacho, also
    known as Ignacio Camacho, also
    known as Frederico Camacho,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO, and ANDERSON , Circuit Judges.




         Defendant pleaded guilty to one count of illegal entry following deportation

in violation of 8 U.S.C. § 1326(a). The district court sentenced defendant to

forty-six months of incarceration, followed by thirty-six months of supervised

release. The sentence calculation included a sixteen-level enhancement for



*
      This order and judgment is not binding precedent, except under the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.
defendant’s prior conviction of an aggravated felony.    See 8 U.S.C. § 1326(b)(2);

U.S. Sentencing Commission,      Guidelines Manual , § 2L1.2(b)(1)(A). Defendant

now appeals, arguing that the district court erred in enhancing his sentence based

on a factor that was not charged in the indictment and to which he did not plead

guilty. 1

        Defendant bases his argument on     Apprendi v. New Jersey , 530 U.S. 466

(2000), in which the Supreme Court held 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. Defendant argues that because the indictment did not

charge him with the prior conviction of an aggravated felony, and because he did

not plead guilty to that fact, the sentencing court could not rely on the prior

conviction to enhance his sentence in accordance with 8 U.S.C. § 1326(b)(2).

        In Apprendi , however, the Court explicitly excepted from its rule cases in

which the enhancement factor is a prior conviction. 530 U.S. at 487-90. The

Court did so based on its previous decision in    Almendarez-Torres v. United

States , 523 U.S. 224, 235 (1998), in which it held that the existence of a prior

conviction is merely a sentencing factor, not a separate element of the offense to



1
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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which the full panoply of due process protections attach. Accordingly, the

increased prison term set forth in 8 U.S.C. § 1326(b) may apply even when an

indictment does not allege the prior conviction of an aggravated felony.

Almendarez-Torres , 523 U.S. at 226-27, 235.

       Although the Court expressed misgivings in      Apprendi about whether it

correctly decided Almendarez-Torres , the Court nonetheless refused to overrule

its earlier decision. 530 U.S. at 489-90. This court, therefore, is “bound by

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

not an element of the offense with which he was charged by indictment, but is,

instead, a sentencing factor.”   United States v. Martinez-Villalva   , 232 F.3d 1329,

1332 (10th Cir. 2000); see also United States v. Dorris    , 236 F.3d 582, 587 (10th

Cir. 2000) (rejecting defendant’s efforts to challenge the continuing validity of

Almendarez-Torres ), cert. denied , 121 S. Ct. 1635 (2001).

       Defendant concedes that our decision in     Martinez-Villalva requires us to

reject his claim, but states that he is bringing this appeal to preserve the issue for

Supreme Court review. He has done so. It remains our duty to decide his case




                                           -3-
under the rule announced in   Almendarez-Torres . Accordingly, the judgment of

the United States District Court for the District of Utah is AFFIRMED.



                                                   Entered for the Court



                                                   Stephen H. Anderson
                                                   Circuit Judge




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