                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         APR 26 2001
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
          Plaintiff - Appellee,                         No. 00-3324
 v.                                            (D.C. No. 00-CR-10051-JTM)
 FRANCISCO BANDA-ANGUIANO,                                (D. Kan.)
                Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      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). The case is therefore submitted without

oral argument.

      Defendant pleaded guilty to one count of illegal reentry in violation of

8 U.S.C. § 1326(a) and (b)(2). Prior to his reentry, Defendant had been deported

because of a conviction for aggravated assault. That fact is significant. Mere



      *
       This order and judgment is not binding precedent, except under the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.
unlawful reentry by an alien carries a two-year maximum prison term, whereas

unlawful reentry by an alien subsequent to deportation for an aggravated felony

carries a twenty-year maximum prison term. See id. Defendant argued to the

district court that his reentry sentence could not exceed two years because the

indictment never alleged that he had previously been deported subsequent to an

aggravated felony conviction. The district court rejected Defendant’s argument

and sentenced him to forty-six months in prison and two years of supervised

release based on the prior conviction. Defendant appeals, arguing that his

sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).

      Defendant acknowledges that his position has been squarely rejected by the

Supreme Court and this court. See Aplt. Br., at 2 (citing United States v.

Martinez-Villalva, 232 F.3d 1329 (10th Cir. 2000)). In Martinez-Villalva, we

noted that Almendarez-Torres v. United States, 523 U.S. 224 (1998),

      held that 8 U.S.C. § 1326(b)(2), which mandates an increased
      sentence for violation of § 1326(a) if the previous deportation was
      after commission of an aggravated felony, was not a separate element
      of the offense that must be proved to a jury beyond a reasonable
      doubt, but was, instead, merely a sentencing factor based on
      recidivism. Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219.
      We are bound by that case to hold that the 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. See id.
      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. See id.

Martinez-Villalva, 232 F.3d at 1332. In light of this clear adverse precedent,

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Defendant raises the issue to preserve it for further review before the Supreme

Court. See Aplt. Br., at 2. Be that as it may, Martinez-Villalva nonetheless

compels us to AFFIRM the district court’s sentence in the instant case.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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