                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     February 2, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
                                                        No. 06-4169
 v.                                                   (District of Utah)
                                                 (D.C. No. 2:05-CR -902-TS)
 R AY M UN D O CH A V EZ-A V ILA,
 a/k/a Ray Avilar-Noyola,

              Defendant-Appellant.



                           OR D ER AND JUDGM ENT *


Before B RISC OE , M cKA Y, and M cCO NNELL, Circuit Judges.


      In December 2005, Raymundo Chavez-Avila was indicted for illegal

reentry following deportation in violation of 8 U.S.C. § 1326(a). Concurrently

with the indictment, the government filed a notice of its intent to seek a

sentencing enhancement under 8 U.S.C. § 1326(b), which increases the maximum

penalty for a violation of § 1326(a) from two years to twenty years if the




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
defendant was previously deported “subsequent to a conviction for commission of

an aggravated felony.” 8 U.S.C. § 1326(b). This enhancement applies to M r.

Chavez-Avila because he was convicted in 1992 of “Possession/Sale of a

Controlled Substance” in California. 2 R. Vol. I, Doc. 2, at 1. M r. Chavez-Avila

eventually pleaded guilty and was sentenced to seventy months imprisonment, the

low end of his applicable advisory guidelines range.

      On appeal, M r. Chavez-Avila urges us to vacate his sentence because it is

longer than § 1326(a)’s two-year statutory maximum. He argues that the

government must allege his prior felony conviction in the indictment and prove it

at trial before he is subject to § 1326(b)’s enhancement provision— actions the

government did not take in his case.

      To his credit, M r. Chavez-Avila concedes that his argument is foreclosed

by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S.

224 (1998), and our post-Booker cases discussing Almendarez-Torres’ continuing

viability, see United States v. M oore, 401 F.3d 1220, 1223–24 (10th Cir. 2005).

As we explained in M oore, it is not our prerogative to overrule a Supreme Court

case, however uncertain its underpinnings may be in light of subsequent

developments. See id. Thus, M r. Chavez-Avila w isely admits that the only




      2
       This state conviction does not pose problems similar to those addressed in
Lopez v. Gonzales, 127 S. Ct. 625 (2006), because it was for more than the m ere
possession prohibited by 21 U.S.C. § 844. See Lopez, 127 S. Ct. at 629.

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legitimate reason “[h]e raises th[is] issue [is] to preserve it for further review in

the Supreme Court.” Appellant’s Br. 7.

      Accordingly, we hold that M r. Chavez-Avila’s sentence is proper based on

Almendarez-Torres. The judgment of the United States District Court for the

District of U tah is AFFIRM ED.

                                                 Entered for the Court,

                                                 M ichael W . M cConnell
                                                 Circuit Judge




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