                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          MAY 9 2001

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 00-1418
 v.                                                (D.C. No. 00-M-1767)
                                                         (D. Colo.)
 SAUL RODRIGUEZ-HERNANDEZ,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      Saul Rodriguez-Hernandez seeks a certificate of appealability (COA)

allowing him to appeal the district court’s denial of his 28 U.S.C. § 2255 habeas

petition. Because we find he has not “made a substantial showing of the denial of


      *
       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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
a constitutional right,” we deny his application for a COA and dismiss the appeal.

      Mr. Rodriguez-Hernandez, a Mexican citizen, was convicted of the

aggravated felony of “harrasment by stalking” in Colorado in 1996. That

conviction led to his deportation through El Paso, Texas, on or about October 1,

1998. Mr. Rodriguez-Hernandez reentered the United States less than two months

later and returned to Colorado, where he was arrested and indicted for violation of

8 U.S.C. § 1326(a), which prohibits removed aliens from reentering the United

States without first obtaining express permission from the Attorney General. The

government filed a Notice of Sentence Enhancement, proclaiming its intent to

seek an enhanced penalty under 8 U.S.C. § 1326(b)(2), which mandates sentences

of up to twenty years for individuals convicted of violating section 1326 after an

aggravated felony conviction. Mr. Rodriguez-Hernandez pleaded guilty to the

illegal reentry charge, stipulating to underlying facts which included his earlier

aggravated felony conviction and subsequent deportation. His presentence report

suggested a guideline range of 77-96 months, but the district court granted his

motion for a departure from the guidelines and sentenced him to 60 months in

prison.

      After this court dismissed a direct appeal in March 2000, Mr. Rodriguez-

Hernandez filed a 28 U.S.C. § 2255 petition for habeas corpus in the district

court. He argued he was denied due process because his indictment had not


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included the aggravated felony sentencing enhancement as an element of the

indicted offense. He also claimed ineffective assistance of counsel, and

challenged the calculation of his sentence. The district court concluded there was

no ineffective assistance of counsel, no sentencing challenge was warranted, and

the enhanced sentence was proper because Mr. Rodriguez-Hernandez had

stipulated to the prior aggravated felony conviction. Mr. Rodriguez-Hernandez

moved for a COA in the district court, which denied the motion. He then filed

this appeal and related application for a COA.

      Under 28 U.S.C. § 2253(b)(2), we may grant a COA and hear this appeal

only if we find that Mr. Rodriguez-Hernandez “has made a substantial showing of

the denial of a constitutional right.” Relying upon Apprendi v. New Jersey, 530

U.S. 435 (2000), he argues his constitutional rights were violated when a

sentence-enhancing fact was excluded from his indictment. Apprendi 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. Although this rule makes no

mention of indictment practices, other language in Apprendi suggested the

relevant facts must be included in an indictment as well. See id. at 476. We so

held in United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000). Because the

rule set forth in Apprendi is rooted in the jury trial and due process guarantees of


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the Sixth and Fourteenth Amendments, an Apprendi violation would fit the

definition of a “denial of a constitutional right.” See Browning v. United States,

No. 00-7096, 2001 WL 202041 (10th Cir. Mar. 1, 2001) (en banc) (Apprendi a

new rule of constitutional law).

       Mr. Rodriguez-Hernandez contends that, because his five-year sentence for

violation of section 1326 after an aggravated felony conviction exceeds the two-

year maximum penalty for someone without a previous conviction,            Apprendi

requires that the fact of the prior conviction be included in an indictment. This

argument overlooks the explicit language of       Apprendi , which limited its

application to facts “ [o]ther than a prior conviction   .” 530 U.S. at 490 (emphasis

added). Prior felony convictions remain a valid basis for sentencing

enhancements.    See Almendarez-Torres v. United States      , 523 U.S. 224 (1998).

Although Mr. Rodriguez-Hernandez argues certain language in          Apprendi

foreshadowed that Almendarez-Torres will be overruled, Almendarez-Torres

remains controlling law at present. Under the holding of that case as well as

Apprendi ’s clear exception for prior convictions, the government committed no

constitutional error in using Mr. Rodriguez-Hernandez’s prior conviction as a

sentence enhancing element without first including it in the indictment.         See

United States v. Dorris , 236 F.3d 582, 587-88 (10th Cir. 2000).

       Mr. Rodriguez-Hernandez also claims the ineffective assistance of counsel


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during sentencing proceedings, but he offers no facts to support this bare

assertion. While it is well settled that courts must construe pro se pleadings

broadly, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam), we will

not attempt to create an argument for the plaintiff in the absence of any

discussion of the issues,   see Drake v. City of Fort Collins , 927 F.2d 1156, 1159

(10th Cir. 1991). We further note the district court’s observation that its

departure from the sentencing guidelines to reduce Mr. Rodriguez-Hernandez’s

sentence was proof that his counsel was, in fact, effective.

       Because Mr. Rodriguez-Hernandez has made no showing of any denial of

his constitutional rights, we   DENY his request for a COA and    DISMISS the

appeal.


                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Circuit Judge




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