                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         May 10, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 05-4277
 ADRIAN RAMIREZ-VERDIN,                         (D.C. No. 2:05-CR-279-DS)
                                                        (D. Utah)
          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and O’BRIEN , Circuit Judges.



      Adrian Ramirez-Verdin appeals his sentence for illegal reentry after

deportation, in violation of 8 U.S.C. § 1326. ** We exercise jurisdiction pursuant

to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and AFFIRM.

      On April 27, 2005, Ramirez-Verdin was indicted on one count of illegal


      *
        This order and judgment is not binding precedent, except under the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 appellate record, this panel has
determined unanimously to honor 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 submitted without oral argument.
reentry into the United States in violation of 8 U.S.C. § 1326. On the same day,

the government filed a Notice of Sentencing Enhancement, notifying Ramirez-

Verdin that his sentence would be enhanced based on a prior felony conviction

pursuant to 8 U.S.C. § 1326(b), and that the offense carried a maximum penalty of

twenty years’ imprisonment, a $250,000 fine, or both. On June 29, 2005,

pursuant to a written plea agreement, Ramirez-Verdin pleaded guilty to the sole

count of the indictment, which charged him with violation of 8 U.S.C. § 1326.

He acknowledged in the Statement by Defendant in Advance of Plea of Guilty

that the maximum penalty for violation of 8 U.S.C. § 1326 was a term of

imprisonment of up to twenty years, a fine of $250,000, or both, as well as a term

of supervised release up to thirty-six months.

      The base offense level for unlawfully entering or remaining in the United

States is eight. U.S.S.G. § 2L1.2. The presentence report revealed that Ramirez-

Verdin had been previously deported after a drug trafficking conviction. This

triggered a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) and

resulted in a total offense level of twenty-one. Ramirez-Verdin had a criminal

history category of V and received a three-point adjustment for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1. Based on this information, the

presentence report calculated a guideline range of seventy to eighty-seven months.

U.S.S.G. § 5A.


                                         -2-
      Ramirez-Verdin did not object to the presentence report, and instead urged

the court to consider his difficult family circumstances and other mitigating

factors in imposing sentence. On September 20, 2005, the district court sentenced

Ramirez-Verdin to seventy-eight months’ imprisonment followed by thirty-six

months’ supervised release. The district court entered judgment on October 6,

2005, and Ramirez-Verdin timely filed this appeal.

      Ramirez-Verdin now argues the district court erred in sentencing him to a

term of imprisonment exceeding the maximum penalty for the offense of illegal

reentry. He contends the government charged him with a violation of § 1326(a)

and alleged only that he had been found in the United States after having been

previously deported, and that the offense carries a maximum term of

imprisonment of two years. 1 He argues that the district court’s reliance on a prior

conviction to enhance his sentence was in error because the indictment did not

allege that he had been convicted previously of an aggravated felony.

      Because Ramirez-Verdin raises these arguments for the first time on appeal,




      1
         We note that Ramirez-Verdin’s statement of facts erroneously states that
he was charged with violation of 8 U.S.C. § 1326(a) and that he entered a plea of
guilty to that charge. The indictment, Statement by Defendant in Advance of Plea
of Guilty, and the transcript of Ramirez-Verdin’s guilty plea all indicate he was
charged with and pleaded guilty to a violation of 8 U.S.C. § 1326, not 8 U.S.C. §
1326(a). ROA, Vol. I, Doc. 1 at 1-2, Doc. 7 at 1; ROA, Vol. II at 6.

                                         -3-
we review only for plain error. 2 See United States v. Gonzalez-Huerta, 403 F.3d

727, 732 (10th Cir. 2005) (en banc). “Plain error occurs when there is (1) error,

(2) that is plain, which (3) affects substantial rights, and which (4) seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(internal quotation marks omitted).

      Ramirez-Verdin’s appeal has no merit. The Supreme Court has held that a

prior conviction is not an element of a § 1326 unlawful entry offense, and thus, a

prior conviction need not be alleged in the indictment. Almendarez-Torres v.

United States, 523 U.S. 224, 246-47 (1998). The Supreme Court’s decisions in

Booker, 3 Blakely, 4 and Apprendi 5 have not altered this principle. See United

States v. Moore, 401 F.3d 1220, 1223-24 (10th Cir. 2005). While some justices




      2
         Ramirez-Verdin urges this court to review his sentence de novo because,
he contends, the district court committed “jurisdictional error” when the court
sentenced him for an offense for which he had not been charged or convicted.
This argument fails. A grand jury charged Ramirez-Verdin with one count of
illegal reentry into the United States in violation of 8 U.S.C. § 1326, he pleaded
guilty to that charge, and the district court sentenced him for that crime. Even if
we were to employ a de novo review, Ramirez-Verdin’s claim nevertheless fails
because the district court committed no error of law in relying on his prior
conviction to enhance Ramirez-Verdin’s sentence. See infra.
      3
          United States v. Booker, 543 U.S. 220 (2005).
      4
          Blakely v. Washington, 542 U.S. 296 (2004).
      5
          Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                         -4-
have expressed reservations as to the correctness of Almendarez-Torres, 6 the

Supreme Court has not overruled the decision, and it is not our place to do so. Id.

(“Although the Court may overrule Almendarez-Torres at some point in the

future, it has not done so, we will not presume to do so for the Court, and we are

bound by existing precedent to hold that the Almendarez-Torres exception to the

rule announced in Apprendi and extended to the Guidelines in Booker remains

good law.”). Accordingly, where the defendant is charged with violation of 8

U.S.C. § 1326, the government need not also charge in the indictment and prove

to a jury the fact of defendant’s prior conviction before the prior conviction can

be used to enhance the defendant’s sentence under 8 U.S.C. § 1326(b). Id.

      The district court’s sentence is AFFIRMED.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge



      6
        Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J., concurring)
(“[A] majority of the Court now recognizes that Almendarez-Torres was wrongly
decided.”); Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) (“[I]t is arguable
that Almendarez-Torres was incorrectly decided . . . .”); Almendarez-Torres, 523
U.S. at 249 (Scalia, J., dissenting) (arguing that § 1326(a), illegal reentry, and §
1326(b)(2), illegal reentry after conviction of an aggravated felony, are separate
criminal offenses, and because prior conviction of an aggravated felony is an
element of the latter offense, it must be charged in the indictment; Justices
Stevens, Souter, and Ginsburg joined in the dissent).

                                         -5-
