                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 24 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-4067
                                                    (D.C. No. 00-CR-619-B)
    MANUEL ALCALA-RODRIGUEZ,                               (D. Utah)
    also known as Raymundo Sanchez-
    Villadares,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and         BRORBY , Senior
Circuit Judge.



         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      This order and judgment is not binding precedent, except under the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 Manuel Alcala-Rodriguez pleaded guilty to illegal reentry

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

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

enhanced prison terms of up to twenty years for those who reenter the country

illegally and have a previous aggravated felony conviction. In a written statement

made in advance of his plea, defendant admitted prior felony convictions. Under

the enhancement provisions of § 1326(b)(2), and after adjusting for acceptance of

responsibility and taking into account defendant’s criminal history, the district

court sentenced him to forty-one months’ imprisonment, followed by a term of

supervised release.

       On appeal, defendant 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 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 , 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.      United




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States v. Martinez-Villalva , 232 F.3d 1329, 1332 (10th Cir. 2000). We are bound

by Almendarez-Torres and therefore reject appellant’s arguments.

      Defendant concedes that relief from this court is foreclosed by

Almendarez-Torres and this court’s decisions in     Martinez-Villalva and United

States v. Dorris , 236 F.3d 582 (10th Cir. 2000),   cert. denied , 121 S. Ct. 1635

(2001), but seeks to preserve his argument for review by the Supreme Court in the

event that Almendarez-Torres is overruled. He has done so. “Nevertheless,

Almendarez-Torres has not been overruled and directly controls our decision in

this case.” Dorris , 236 F.3d at 587. Accordingly, the sentence imposed by

the United States District Court for the District of Utah is AFFIRMED.

                                                       Entered for the Court



                                                       Wade Brorby
                                                       Senior Circuit Judge




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