                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                 September 5, 2007
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                            __________________________              Clerk of Court

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

          Plaintiff-Appellee,
                                                        No. 07-4017
 v.                                             (D.Ct. No. 1:05-CR-128-TC)
                                                         (D. Utah)
 M IG U EL A N G EL M A D RID -
 B ELTRAN ,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.



      Appellant M iguel Angel M adrid-Beltran pled guilty to one count of

      *
         This order and judgment is not binding precedent except under the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.
illegally reentering the United States in violation of 8 U.S.C. § 1326. The district

court sentenced M r. M adrid-Beltran to fifty-seven months imprisonment. He now

appeals his sentence, claiming the district court erred in sentencing him to a term

of imprisonment exceeding the two-year maximum penalty for illegal reentry

following deportation under 8 U.S.C. § 1326(a) by enhancing his sentence sixteen

levels for a prior felony conviction. In making his argument he suggests any facts

raising the maximum penalty must be alleged in the indictment and proved at

trial. W e exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,

and affirm his sentence.



                                   I. Background

      On October 12, 2005, an indictment issued against M r. M adrid-Beltran on

one count of illegal reentry into the United States in violation of 8 U.S.C. § 1326.

The same day, the government filed a notice of sentencing enhancement, advising

M r. M adrid-Beltran his sentence would be enhanced based on a prior conviction

for an aggravated felony and thereby would result in a sentence of imprisonment

of not more than twenty years under 8 U.S.C. § 1326(b). The notice listed both a

1999 conviction for possession of methamphetamine and a 2000 conviction for a

threat to commit a crime, for which he received a twenty-four-month sentence to

run concurrently with his twenty-four-month sentence following revocation of his

term of probation in the methamphetamine possession case. M r. M adrid-Beltran

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entered a written plea agreement, pleading guilty to the one-count indictment.

He also filed a statement in advance of the plea, in w hich he indicated his

attorney had explained, and he understood, not only the nature of the charges

against him and his right to a trial, but the consequences associated with pleading

guilty. He also acknowledged and certified he was advised of and understood the

maximum term of imprisonment was twenty years. At his plea hearing M r.

M adrid-Beltran made the same acknowledgments and pled guilty to the charge

against him.



      After M r. M adrid-Beltran pled guilty, the probation officer prepared a

presentence report calculating his sentence under the applicable United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). The probation officer set

M r. M adrid-Beltran’s base level at eight under U.S.S.G. § 2L1.2(a) for unlaw fully

reentering the United States. The probation officer then increased the base level

by sixteen levels under § 2L1.2(b)(1)(A)(ii) based on M r. M adrid-Beltran’s prior

aggravated felony conviction for “M aking Terroristic Threats” against another,

which caused the victim to fear for her physical safety, thereby constituting a

“crime of violence” for the purpose of applying the enhancement. The probation

officer also recommended a three-level downward adjustment for acceptance of

responsibility. M r. M adrid-Beltran’s total offense level of twenty-one, together

with his criminal history category of IV, resulted in a Guidelines sentencing range

                                         -3-
of fifty-seven to seventy-one months imprisonment. The presentence report also

noted the maximum term of imprisonment was twenty years under 8 U.S.C.

§ 1326(b)(2).



      M r. M adrid-Beltran filed only one objection to the presentence report,

contesting the maximum punishment for his offense w as twenty years under 8

U.S.C. § 1326(b) and claiming his offense of illegal reentry only warranted a

maximum punishment of two years under 8 U.S.C. § 1326(a). In making his

objection, M r. M adrid-Beltran noted the indictment did not charge him with the

prior conviction and he did not admit to the existence of that conviction as an

element of his instant crime when he pled guilty. W hile he acknowledged

Supreme Court and Tenth Circuit precedent resolved the issue against his

position, M r. M adrid-Beltran indicated he raised the issue to preserve it for future

appeal.



      At the M ay 30, 2006 sentencing hearing M r. M adrid-Beltran raised the

same objection, which the district court rejected. After reviewing letters and

other materials on M r. M adrid-Beltran’s behalf; considering the presentence

report, the factors set forth in 18 U.S.C. § 3553(a), and the Guidelines range; and

hearing M r. M adrid-Beltran’s statement to the court, the district court determined

a reasonable sentence was at the low end of the Guidelines sentencing range at

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fifty-seven months imprisonment, with credit for time served starting on October

4, 2005.



      M r. M adrid-Beltran now appeals his sentence on essentially the same

grounds as raised before the district court, claiming it erred in sentencing him to a

term of imprisonment exceeding the two-year maximum penalty by enhancing his

sentence sixteen levels for his prior felony conviction. In making his argument,

he again suggests any facts which raise his sentence beyond the two-year

maximum penalty are an element of the offense which must be alleged in the

indictment and proved at trial. He again concedes prior Supreme Court and Tenth

Circuit precedent foreclose his claim, but continues to preserve his argument for

future appeal. Other than this claim, M r. M adrid-Beltran does not suggest his

sentence is unreasonable under the sentencing factors in 18 U.S.C. § 3553(a).



                                   II. Discussion

      W e review the legality of a sentence de novo. See United States v. Prows,

448 F.3d 1223, 1226 (10th Cir. 2006). W e begin by acknowledging 8 U.S.C.

§ 1326(a) proscribes a maximum sentence of two years for the offense of illegal

reentry. However, § 1326(b)(2) sets a maximum penalty of twenty years if, as

here, the defendant possesses a prior aggravated felony conviction. Similarly,

§ 2L1.2(b)(1)(A)(ii) provides a sixteen-level sentencing enhancement if the

                                          -5-
defendant was deported after committing a crime of violence. 1



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

existence of a prior conviction is merely a sentencing factor and not a separate

element of the offense which must be pled in an indictment charging a violation

of 8 U.S.C. § 1326. See 523 U.S. 224, 228-35 (1998). As a result, for the

twenty-year maximum in § 1326(b) to apply, the Supreme Court and this court

have determined the government is not required to allege in the indictment the

fact or existence of a prior aggravated felony conviction. Id. at 226-27; United

States v. M artinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000). W e have also

determined the holding in Almendarez-Torres continues to stand following the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). See

United States v. M oore, 401 F.3d 1220, 1223-24 (10th Cir. 2005). Until the

Supreme Court overrules Almendarez-Torres, this court is bound by such

precedent. See M oore, 401 F.3d at 1224. Thus, in the instant case, we hold prior

precedent fully forecloses M r. M adrid-Beltran’s argument on appeal. 2


      1
         A “crime of violence,” for the purposes of § 2L1.2(b)(1)(A )(ii), is
defined as “any offense under federal, state, or local law that has as an element
the use, attempted use, or threatened use of physical force against the person of
another.” See U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). In this case, M r. M adrid-
Beltran’s crime of making terroristic threats, causing another to fear for her
physical safety, was considered a crime of violence.
      2
          In addition, we note in this case the government filed, on the same day as
                                                                        (continued...)

                                          -6-
      Finally, M r. M adrid-Beltran raises no additional argument regarding the

reasonableness of his fifty-seven-month sentence and nothing in the record

persuades us otherw ise. Having reviewed for reasonableness the sentence’s

length, as guided by the factors in 18 U.S.C. § 3553(a), we find no nonfrivolous

basis for challenging the sentence imposed. See United States v. Kristl, 437 F.3d

1050, 1053 (10th Cir. 2006) (per curiam). The district court in this case

explicitly considered the factors in § 3553(a), and a presumption of

reasonableness attaches to a sentence, like here, which is within the correctly-

calculated Guidelines range, which M r. M adrid-Beltran has not rebutted. See id.

at 1053-55.



                                  III. Conclusion

      For these reasons, we A FFIRM M r. M adrid-Beltran’s sentence.



                                       Entered by the C ourt:

                                       W ADE BRO RBY
                                       United States Circuit Judge




      2
        (...continued)
the indictment, a notice of sentencing enhancement advising M r. M adrid-Beltran
it intended to enhance his sentence with his prior conviction and that M r. M adrid-
Beltran acknowledged and certified he was advised and understood the maximum
term of imprisonment was twenty years when he entered his statement in advance
of his guilty plea.

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