                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         MAY 30 2001
                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                     PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                     No. 00-3357
                                                (D.C. No. 00-10050-01-MLB)
 JOSE RAMON GUAJARDO-                                   (D. Kansas.)
 HERNANDEZ,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges.


      Defendant Guajardo-Hernandez pleaded guilty to one count of illegal

reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). His sentence of fifty-seven

months imprisonment included an enhancement because defendant had previously

been deported for an aggravated felony conviction. See 8 U.S.C. § 1326(b)(2);

U.S.S.G. § 2L1.2(b)(1)(A). Defendant objected to the presentence report, arguing



      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
his sentence should not have exceeded the two-year maximum prison term for

mere unlawful reentry by an alien because his prior deportation for an aggravated

felony conviction was not charged in the indictment. His objection was

overruled, and on appeal he challenges the use of a sentence enhancement based

on that factor, arguing that his resulting sentence is unconstitutional under

Apprendi v. New Jersey, 530 U.S. 466 (2000).

      In Apprendi, the Supreme 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.

      Defendant acknowledges that his argument runs counter to recent decisions

of this Court. In United States v. Martinez-Villalva, 232 F.3d 1329 (10th Cir.

2000), we rejected a nearly identical post-Apprendi claim as foreclosed by the

Supreme Court’s holding in Almandarez-Torres v. United States, 523 U.S. 224

(1998).

      [An] exception was carved out of the Apprendi holding to account
      for the Court’s holding in Almandarez-Torres[]. . . .
             Almendarez-Torres 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. 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,

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      a sentencing factor. 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.

Martinez-Villalva, 232 F.3d at 1331–32 (citations omitted). Like that case,

defendant’s sentence “falls squarely within the exception to the Apprendi holding

and is governed by Almendarez-Torres.” Id. at 1331; see also United States v.

Dorris, 236 F.3d 582, 587 (10th Cir. 2000) (reaffirming that Almendarez-Torres is

not overruled by Apprendi), cert. denied, 121 S. Ct. 1635 (2001) .

      We reject defendant’s argument that “[b]ecause the Apprendi decision casts

a pall over the validity of Almendarez-Torres, . . . this Court can and should

vacate Guajardo’s sentence.” (Appellant’s Br. at 7.) Contrary to defendant’s

assertion that “stare decisis does not bar this Court from ruling contrary to the

holding in Almendarez-Torres,” we are bound both by the Supreme Court’s

holding in Almendarez-Torres and by this Court’s recognition that “[t]he

Apprendi Court specifically declined to revisit or overrule Almendarez-Torres.”

Martinez-Villalva, 232 F.3d at 1331. In light of that precedent, defendant’s

indictment and sentence did not violate his constitutional rights.

      Defendant brings this appeal in part to preserve his argument for review by

the Supreme Court. With the acknowledgment that he has done so, we AFFIRM

defendant’s sentence.

      The mandate shall issue forthwith.


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ENTERED FOR THE COURT



Carlos F. Lucero
Circuit Judge




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