                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JUL 31 2001
                                       TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,                    No. 01-4000
          v.                                                (D. Utah)
 CARLOS OJEDA-SIERRA, also                         (D.C. No. 00-CR-243-J)
 known as Carlos Garcia-Sierra,

                 Defendant-Appellant.


                              ORDER AND JUDGMENT        *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). 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        This order and judgment is not binding precedent, except under the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, 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.
       Mr. Ojeda-Sierra pleaded guilty to one count of illegal reentry following

deportation in violation of 8 U.S.C. § 1326(a). He was sentenced to fifty-seven

months’ imprisonment, followed by thirty-six months’ supervised release. The

district court increased Mr. Ojeda-Sierra’s base offense level by sixteen points

pursuant to USSG § 2L1.2(b)(1)(A) because of his prior conviction for an

aggravated felony. Mr. Ojeda-Sierra objected to the sixteen-level enhancement

for having previously sustained an aggravated felony. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

       The basis for Mr. Ojeda-Sierra’s argument is     Apprendi v. New Jersey , 530

U.S. 466, 490 (2000). There the Supreme Court held that facts used to enhance

the penalty for a crime beyond the statutory maximum must be submitted to a jury

and proved beyond a reasonable doubt. Specifically he argues that, because he

was neither charged with, nor pleaded guilty to, the prior felony conviction, the

sentencing court erred in relying on the prior conviction to enhance his sentence

under 28 U.S.C. § 1326(b)(2).

       Mr. Ojeda-Sierra concedes that his argument is foreclosed for the time

being by Almendarez-Torres v. United States      , 523 U.S. 224, 247 (1998),   see

Aplt’s Br. at 3-4, but seeks to preserve his argument for review by the Supreme

Court in anticipation that   Almendarez-Torres will be overruled. He has done so.

“Nevertheless, Almendarez-Torres has not been overruled and directly controls


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our decision in this case.”   United States v.. Dorris , 236 F.3d 582, 587 (10th Cir.

2000), cert. denied , 121 S. Ct. 1635 (2001).

       Accordingly, we AFFIRM Mr. Ojeda-Sierra’s sentence.



                                         Entered for the Court,



                                         Robert H. Henry
                                         Circuit Judge




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