                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          APR 2 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 01-4223
v.
                                                   (D.C. No. 00-CR-10-C)
                                                      (District of Utah)
RAUL HERRERA-PEREZ,

          Defendant - Appellant.




                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



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

unanimously to grant 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       This order and judgment is not binding precedent, except under the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.
      Defendant Raul Herrera-Perez pleaded guilty to illegal reentry following

deportation, in violation of 8 U.S.C. § 1326(a). Although a violation of this

statute generally carries a maximum prison sentence of two years, § 1326(b)(2)

provides for an enhanced prison term of up to twenty years for those who reenter

the country illegally and have a previous aggravated felony conviction. On the

same day that Herrera-Perez was indicted for violating § 1326, the United States

filed a Notice of Sentencing Enhancement (the “Notice”). The Notice advised

Herrera-Perez that, based on a prior aggravated felony conviction in Utah state

court, he was subject to the enhanced penalties set out in § 1326(b). In written

statements made in advance of his guilty plea, Herrera-Perez acknowledged that

the maximum term of imprisonment he was facing was twenty years and

stipulated as follows:

              My previous criminal history includes, but may not be limited
      to, the following felony conviction in the United States of America,
      to wit:
              1) Distribution, Offering, and Arranging to Distribute a
              Controlled Substance, to wit: Cocaine, First Degree
              Felony, Third Judicial Court, Salt Lake County, State of
              Utah, August 8, 2000, Case No. 001913089
              I have previously been arrested and deported from the United
      States of America on at least one occasion. The latest arrest and
      deportation occurred on September 8, 2000.
              I do not have nor have I ever had the express consent of the
      Attorney General for the United States of America to enter this
      country at any time.




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In accord with this stipulation and based on his prior aggravated felony

conviction, 1 the Presentence Report increased Herrera-Perez’s offense level by

sixteen points pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A).

Herrera-Perez did not lodge any objections to the Presentence Report. The

district court ultimately sentenced Herrera-Perez to a term of imprisonment of

seventy-seven months.

      On appeal, Herrera-Perez relies on Apprendi v. New Jersey, 530 U.S. 466

(2000), to argue that his sentence exceeds the maximum penalty for the offense

because the fact of his prior conviction was not set out in the indictment,

submitted to a jury, or proved beyond a reasonable doubt. Apprendi, however,

acknowledged that a narrow exception to this general rule, established in

Almendarez-Torres v. United States, 523 U.S. 224 (1998), applies when the fact

used to enhance the sentence is a prior conviction. Apprendi, 530 U.S. at 490.

Relying on Almendarez-Torres and the narrow exception recognized in Apprendi,

this court has held that an indictment which does not contain a separate charge for

prior conviction of an aggravated felony does not violate constitutional rights and



      1
         It is clear that Herrera-Perez’s drug trafficking conviction in Utah state
court constitutes an “aggravated felony” for purposes of Sentencing Guideline §
2L1.2. See United States Sentencing Guideline § 2L1.1 note 1 (providing that
“aggravated felony” is defined at 8 U.S.C. § 1101(a)(43)); 8 U.S.C. §
1101(a)(43)(B) (providing that the term “aggravated felony” means, inter alia,
“illicit trafficking in a controlled substance”).

                                         -3-
does not preclude the application of § 1326(b). United States v.

Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000). This panel is bound by

Almendarez-Torres and Martinez-Villalva and therefore rejects Herrera-Perez’s

arguments.

      Herrera-Perez concedes that the relief he seeks is foreclosed by

Almendarez-Torres and Martinez-Villalva, but seeks to preserve his argument for

review by the Supreme Court in the event that Almendarez-Torres is overruled.

He has done so. See McKnight v. Gen. Motors Corp., 511 U.S. 659, 660 (1994).

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

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

2000). Accordingly, the sentence imposed by the United States District Court for

the District of Utah is hereby AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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