                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    September 13, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

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

          Plaintiff - Appellee,
                                                        No. 06-4037
 v.                                              (D.C. No. 05-CR-607-PGC)
                                                         (D. Utah)
 A RTU RO TO RR ES-C AR RA N ZA,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **


      Defendant-Appellant Arturo Torres-Carranza appeals from his sentence

following a plea of guilty to one count of illegal reentry into the United States in

violation of 8 U.S.C. § 1326. The district court sentenced M r. Torres-C arranza to

57 months imprisonment and three years supervised release. On appeal, M r.

Torres-C arranza argues that the maximum that the district court could legally



      *
        This order and judgment is not binding precedent, except under the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.
      **
         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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
sentence him to was 24 months. Our jurisdiction arises under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), and we affirm.



                                    Background

      On August 17, 2005, M r. Torres-Carranza was indicted on one count of

illegal reentry into the United States. The government filed a notice of

sentencing enhancement based on M r. Torres-Carranza’s prior felony conviction

for aggravated assault, resulting in a possible sentence of imprisonment of not

more than 20 years pursuant to 8 U.S.C. § 1326(b). M r. Torres-Carranza entered

a plea of guilty and in a statement in advance of the guilty plea he acknowledged

he was aware of this maximum term and admitted he had a previous felony

conviction for aggravated assault. I R. Doc. 11 at 1, 7-8.

      According to the Pre-Sentence Report (“PSR”), this prior aggravated

assault conviction triggered a 16-level sentencing enhancement. U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). After adjusting for acceptance of responsibility, the total

offense level was 21 (with a criminal history category of IV), and the PSR

concluded that the applicable Sentencing Guidelines range was 57-71 months.

PSR at 2, 8-9. M r. Torres-Carranza did not object to the PSR.



                                     Discussion

      On appeal, M r. Torres-Carranza contends that because the indictment

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charged him with a violation of 8 U.S.C. § 1326 and did not allege that he had

been previously convicted of an aggravated felony, his sentence of 57 months

exceeds the maximum penalty (24 months) for the offense of conviction as

alleged in the indictment. Because M r. Torres-Carranza failed to raise this issue

before the district court, our review is for plain error. United States v. Olano, 507

U.S. 725, 732 (1993); Fed. R. Civ. P. 52(b). Thus, M r. Torres-Carranza must

demonstrate that the sentence contains (1) error, (2) that is plain, and (3) that the

error affects substantial rights. United States v. Visinaiz, 428 F.3d 1300, 1308

(10th Cir. 2005). If this is shown, we may exercise discretion to correct the error

only if it “seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” Olano, 507 U.S. at 732 (quoting United States v. Atkinson,

297 U.S. 157, 160 (1936)) (alteration in original).

      M r. Torres-Carranza forthrightly acknowledges that the Supreme Court and

the Tenth Circuit have ruled against his position. Aplt. Br. at 3 (citing

Almendarez-Torres v. United States, 523 U.S. 224 (1998) and United States v.

M artinez-Villalva, 232 F.3d 1329 (10th Cir. 2000)). The government contends

that because an aggravated felony conviction is a sentencing factor and not a

separate element of the offense, the district court properly sentenced him within

the 20-year statutory maximum. See Almendarez-Torres, 523 U.S. at 226-28,

235; M artinez-Villalva, 232 F.3d at 1332. W e agree. No error exists here, plain

or otherwise.

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      W e also reject M r. Torres-Carranza’s argument that the district court lacked

the jurisdiction to sentence him for a crime with which he was not charged. Aplt.

Br. at 7-8. As noted, with respect to § 1326, a prior conviction is a sentencing

factor and not an element of the offense that must be alleged in the indictment.

Almendarez-Torres, 523 U.S. at 226-27. W e adhere to this position. See United

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

      A FFIR ME D.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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