                                                                          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. 01-4235
                                                   (D.C. No. 2:01-CR-53-W)
    JUAN CARLOS GARCIA-                                   (D. Utah)
    CASTILLO, also known as
    Juan Sarneinto Garcia, Juan Carlos,
    Juan Garcia, Juan Carlos Sarmiento,
    Carlos Sarmiento-Garcia, Juan Carlos
    Sarniento, Carlos Sarniento-Garcia
    Sarniento, Carlos Sarniento-Garcia,

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA , Chief 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




*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Defendant-appellant Juan Carlos Garcia-Castillo was indicted for and

pleaded guilty to one count of illegal reentry following deportation, in violation

of 8 U.S.C. § 1326. The maximum penalty under 8 U.S.C. § 1326(a) is two years

in prison. However, subsection (b) of the statute increases the maximum penalty

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

deportation. See id. § 1326(b)(2). At his plea hearing, Mr. Garcia-Castillo

admitted that he had been convicted in 1998 for second degree robbery, an

aggravated felony under 8 U.S.C. § 1101(a)(43).

      The district court sentenced Mr. Garcia-Castillo to seventy-seven months in

prison to run concurrently with his Utah state sentence, to be followed by three

years of supervised release. This sentence included an enhancement based on

Mr. Garcia-Castillo’s prior aggravated felony conviction.

      Mr. Garcia-Castillo’s sole issue on appeal is that the district court

committed jurisdictional error when it sentenced him to a term of imprisonment

that exceeds the maximum penalty for the offense of conviction. He argues that

because the existence of his prior aggravated felony was not included in the

indictment, a sentence of more than two years violates the United States Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).


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      In Apprendi the 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 a jury, and proved beyond a reasonable doubt.”

Id. at 490 (emphasis added). As Mr. Garcia-Castillo acknowledges, and as the

language quoted above makes clear, the Apprendi rule is subject to an explicit

exception made necessary by the Court’s earlier decision in Almendarez-Torres v.

United States, 523 U.S. 224 (1998). See Apprendi, 530 U.S. at 487-90.

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

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

element of the offense that must be proved to a jury beyond a reasonable doubt.

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

§ 1326(b)(2) may apply even where the indictment failed to allege that the

defendant had a prior aggravated felony conviction. Almendarez-Torres, 523 U.S.

at 226-27, 235.

      Apprendi specifically refused to overrule the earlier Almendarez-Torres.

See Apprendi, 530 U.S. at 489-90 (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”). This court is also bound by its own decisions since

Apprendi rejecting the argument that Mr. Garcia-Castillo makes here. See United


                                         -3-
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), cert. denied, 532 U.S. 986

(2001). 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. 1997).

      Mr. Garcia-Castillo states that he brings this appeal to preserve the issue

for further review by 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 Utah is

AFFIRMED.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




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