                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUL 29 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

 v.
                                                       No. 02-1521
 MARCELINO HERNANDEZ-                            (D.C. No. 02-CR-229-D)
 MORALES, also known as Marcelino                     (D. Colorado)
 Hernandez, also known as Marcelino
 H. Morales, also known as Marcelino
 Moral,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before EBEL, HENRY and HARTZ, Circuit Judges.


      Defendant-Appellant Marcelino Hernandez-Morales pled guilty to one

count of unlawful reentry into the United States following deportation subsequent

to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and


      *
        After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
(b)(2). (ROA I at Docs. 1, 18.) Before he was sentenced, Defendant filed an

objection to the Presentence Investigation Report (“PSIR”). He challenged a

proposed twelve-level enhancement to his sentence for having been previously

convicted of a drug-trafficking offense for which the sentence imposed was

thirteen months or less, pursuant to United States Sentencing Guideline

§ 2L1.2(b)(1)(B). (ROA IV at Addendum.) Defendant argued that because the

drug trafficking offense had not been alleged in the indictment for the crime to

which he was now pleading guilty, using that offense to enhance his sentence

violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court rejected

that argument, applied the twelve-level enhancement to Defendant, and sentenced

him to, inter alia, 56 months’ imprisonment.

      On appeal, Defendant reasserts the Apprendi challenge to his sentence. As

did the district court, we reject that argument as squarely foreclosed by Circuit

and Supreme Court precedent. As we stated in United States v. Martinez-

Villalva, 232 F.3d 1329 (10th Cir. 2000),

      [T]he fact of defendant’s prior felony conviction is not an element of the
      offense with which he was charged by indictment, but is, instead, a
      sentencing factor. Consequently, the indictment in this case, which did not
      separately charge defendant with a prior aggravated felony conviction, did
      not violate defendant’s constitutional rights.

Id. at 1332 (citing Apprendi, 530 U.S. at 489–80, and Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998)).


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Accordingly, we AFFIRM Defendant’s sentence.



                            ENTERED FOR THE COURT


                            David M. Ebel
                            Circuit Judge




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