                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        March 27, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-4150
          v.                                             (D. Utah)
 DAVID RAMIREZ-MARIN, also                       (D.C. No. 2:05-CR-93-DS)
 known as Navor Ramirez-Garcia,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit
Judges.


      David Ramirez-Marin was indicted on February 16, 2005, on one count of

illegal reentry after deportation, in violation of 8 U.S.C. § 1326. That same day

the government filed a notice that it would seek a sentencing enhancement for a

prior aggravated-felony conviction under 8 U.S.C. § 1326(b)(2), which would


      *
        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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
increase the maximum sentence from two to 20 years. On March 8, 2005,

Mr. Ramirez-Marin pleaded guilty in accordance with a plea agreement that

required the government to recommend that he be given “the appropriate

reduction” for acceptance of responsibility under U.S.S.G. § 3E1.1. R. Vol. I,

Doc. 11, at 4. The presentence report (PSR) stated that he had been previously

deported after a conviction for distribution of a controlled substance and

accordingly recommended a 16-level increase in the base offense level under

U.S.S.G. § 2L1.2(b)(1)(A). It also recommended a three-level downward

adjustment for acceptance of responsibility and calculated a criminal-history

category of VI, leading to a guidelines range of 77 to 96 months. Mr. Ramirez-

Marin did not object to the facts alleged in the PSR.

      On May 31, 2005, the district court sentenced Mr. Ramirez-Marin to 81

months’ imprisonment, followed by three years of supervised release. He now

appeals the sentence, arguing that his prior aggravated-felony conviction should

have been alleged in the indictment and proved to the jury beyond a reasonable

doubt. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,

and affirm.

              Section § 1326 provides, in relevant part:

              Reentry of removed aliens

              (a)   In general


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                Subject to subsection (b) of this section, any alien
            who—

                   (1)   has been denied admission, excluded, deported, or
                   removed or has departed the United States while an
                   order of exclusion, deportation, or removal is
                   outstanding, and thereafter

                   (2)    enters, attempts to enter, or is at any time found
                   in, the United States . . .

            shall be fined under Title 18, or imprisoned not more
            than 2 years or both.

            (b)    Criminal penalties for reentry of certain removed
                   aliens

                   Notwithstanding subsection (a) of this section, in
            the case of any alien described in such subsection—

                   ...

                   (2)    whose removal was subsequent to a conviction for
                   commission of an aggravated felony, such alien shall be
                   fined under such Title, imprisoned not more than 20
                   years, or both;

                   ....

Mr. Ramirez-Marin raises for the first time on appeal a challenge to the failure of

the indictment to allege the prior conviction that authorizes a sentence up to 20

years under § 1326(b). He contends that the absence of that allegation in the

indictment means that he was charged only with a violation of § 1326(a) and

cannot be sentenced to more than two years’ imprisonment. As a result, he



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argues, the district court lacked jurisdiction to sentence him under § 1326(b) and,

in the alternative, committed plain error by doing so.

      As Mr. Ramirez-Marin acknowledges, however, his contentions are barred

by controlling precedent. In Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998), the Supreme Court held that § 1326(b)(2) merely creates a sentencing

factor that need not be alleged in the indictment. That holding was questioned

but left intact by the Supreme Court’s decision in Apprendi v. New Jersey, 530

U.S. 466, 489-90 (2000). Believing that Almendarez-Torres was incorrectly

decided and should be overruled, Mr. Ramirez-Marin raises the issue to preserve

it for Supreme Court review. In the meantime, however, we are bound by

Supreme Court precedent. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (“[I]f

a precedent of this Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this Court the prerogative of

overruling its own decisions.” (internal quotation marks omitted)). Accordingly,

we AFFIRM the sentence imposed by the district court.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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