                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 25 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                    No. 01-4236
                                                   (D.C. No. 2:01-CR-394-K)
    MIGUEL HERNANDEZ-MARTINEZ,                             (D. Utah)
    a/k/a Alberto Gonzalez-Diaz,

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA , Chief Circuit Judge,      ANDERSON , Circuit Judge, and
BRORBY , Senior Circuit Judge.




         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.




*
      This order and judgment is not binding precedent, except under the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 Miguel Hernandez-Martinez pleaded guilty to illegal reentry

following deportation, in violation of 8 U.S.C. § 1326(a). Although a violation of

this statute generally carries a maximum prison sentence of two years,

§ 1326(b)(2) provides for an enhanced prison term of up to twenty years for those

who reenter the country illegally and have a previous aggravated felony

conviction. On the same day that Hernandez-Martinez was indicted for violating

§ 1326, the United States filed a Notice of Sentencing Enhancement. The notice

advised Hernandez-Martinez that, based on at least one of four prior controlled

substance convictions, he was subject to the enhanced penalties set out in

§ 1326(b). On August 30, 2001, Hernandez-Martinez entered a plea of guilty

pursuant to a written plea agreement. In the Statement by Defendant in Advance

of Plea of Guilty, Hernandez-Martinez acknowledged that he faced a maximum

prison term of twenty years.

      In accordance with this stipulation and based on his prior aggravated felony

conviction, the Presentence Report (PSR) increased Hernandez-Martinez’s

offense level by sixteen points pursuant to United States Sentencing Guideline

§ 2L1.2(b)(1)(A). After adjusting for Hernandez-Martinez’s acceptance of

responsibility and taking into account his criminal history, the PSR concluded that

the applicable guideline range was forty-six to fifty-seven months in prison.

Hernandez-Martinez did not file any objections to the PSR. The government


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recommended that Hernandez-Martinez be sentenced to the low end of the

guideline range, and on November 6, 2001, the district court accordingly

sentenced him to a term of forty-six months in prison.

      Hernandez-Martinez now appeals, arguing that the district court was

without jurisdiction to sentence him to a term of imprisonment in excess of two

years because the fact of his prior conviction was not alleged in the indictment,

submitted to a jury, or proved beyond a reasonable doubt. Hernandez-Martinez

relies on the Supreme Court’s opinion in    Apprendi v. New Jersey , 530 U.S. 466

(2000), as support for his argument. In    Apprendi , the Supreme Court 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 the jury,

and proved beyond a reasonable doubt.”      Id. at 490. Thus, Apprendi preserved the

holding in Almendarez-Torres v. United States    , 523 U.S. 224, 235 (1998), that a

prior conviction may be used to increase a sentence even if it is not presented to

the jury. See Apprendi , 530 U.S. at 490; see also United States v.

Martinez-Villalva , 232 F.3d 1329, 1331-32 (10th Cir. 2000) (holding that

Apprendi did not overrule Almendarez-Torres and that we are still bound by

Almendarez-Torres ).

      Hernandez-Martinez concedes his argument is foreclosed by

Almendarez-Torres and Martinez-Villalva, but he seeks to preserve his argument


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for review by the Supreme Court in the event    Almendarez-Torres is overruled.

This he has done. In the meantime,   Almendarez-Torres directly controls our

decision in this case, and we must affirm the sentence imposed by the district

court.

         AFFIRMED.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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