                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 22 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-1427
                                                  (D.C. No. 00-CR-175-WM)
    BENJAMIN SUAREZ-MORALES,                              (D. Colo.)
    also known as Benjamin Mendez,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before PORFILIO , ANDERSON , and BALDOCK , Circuit Judges.


         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.

         Defendant was indicted for and pleaded guilty to one count of violating

8 U.S.C. § 1326(a), which prohibits a non-citizen alien from reentering the



*
      This order and judgment is not binding precedent, except under the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.
United States after deportation. The maximum penalty under the statute is two

years in prison. Subsection (b) of the statute increases the maximum possible

penalty to twenty years in prison if the defendant committed an aggravated felony

before deportation. 8 U.S.C. § 1326(b).    Defendant’s indictment did not allege

a violation of § 1326(b), nor did it contain language charging that he had

previously committed an aggravated felony.

      The district court sentenced defendant to forty-one months in prison,

followed by three years of supervised release. That sentence included an

enhancement because defendant had a prior aggravated felony conviction.

On appeal, defendant argues that the maximum prison term to which he is subject

is two years. He contends this limit is consistent with the maximum penalty

contained in § 1326(a), which is both the offense alleged in the indictment and

the offense to which he pleaded guilty. His argument rests on the United States

Supreme Court’s recent decision in    Apprendi v. New Jersey , 120 S. Ct. 2348

(2000) (to be reported at 530 U.S. 466).

      Apprendi held that “ [o]ther than the fact of a prior conviction   , any fact

that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.”       Id. at 2362-

63 (emphasis added). As defendant acknowledges, and as the language quoted

above makes clear, the Apprendi rule is subject to an explicit exception, one the


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Supreme Court intended to shield its earlier decision in       Almendarez-Torres v.

United States , 523 U.S. 224 (1998).       See Apprendi , 120 S. Ct. at 2361-62.

       Interpreting the very statute at issue here,    Almendarez-Torres ruled that the

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

element of the offense to which the full panoply of due process protections

attach. Id. at 235. As a consequence, the twenty-year prison term set forth in 8

U.S.C. § 1326(b) may apply even where the indictment failed to allege that the

defendant had a prior aggravated felony conviction.         Id. at 226-27, 235.

       Despite expressing misgivings about whether         Almendarez-Torres was

correctly decided, Apprendi specifically refused to overrule the earlier decision.

See Apprendi, 120 S. Ct. at 2362 (stating “[e]ven though it is arguable that

Almendarez-Torres was incorrectly decided . . . we need not revisit it for

purposes of our decision today to treat the case as a narrow exception to the

general rule we recalled at the outset”). Moreover, this court has published two

opinions since Apprendi stating that Almendarez-Torres remains binding

authority within this circuit.     See United States v. Martinez-Villalva   , 232 F.3d

1329, 1332 (10th Cir. 2000) and       United States v. Dorris , 236 F.3d 582, 587 (10th

Cir. 2000). As we have said before, one panel of this court cannot overrule a

decision of another panel.       United States v. Hargus , 128 F.3d 1358, 1364 (10th.

Cir. Cir. 1997).


                                              -3-
      Defendant informs that he brings his appeal to preserve an argument for

the Supreme Court. He has done so. It remains our duty, however, to decide his

case under the rule announced in   Almendarez-Torres . The judgment of the

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



                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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