                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUL 3 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-4208
                                                     (D.C. No. 00-CR-217)
    FELIPE GUTIERREZ-HERNANDEZ,                            (D. Utah)
    also known as David
    Gutierrez-Hernandez,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO , and ANDERSON , 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      This order and judgment is not binding precedent, except under the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.
      Appellant Felipe Gutierrez-Hernandez was convicted of illegal reentry after

deportation, in violation of 8 U.S.C. § 1326. Because appellant had previously

been convicted of an aggravated felony, the district court determined the

maximum sentence under the statute to be twenty years’ imprisonment rather than

two-years’ imprisonment.    See 8 U.S.C. §§ 1101(a)(43), 1326(b)(2). After

appellant was given credit for acceptance of responsibility, the court determined

the guideline sentencing range to be seventy to eighty-seven months’

imprisonment. The district court denied appellant’s request for a downward

departure and sentenced him to seventy months’ imprisonment.

      Appellant originally filed this appeal to challenge the district court’s

discretionary decision to deny a downward departure from the guideline

sentencing range. After conceding that this court lacks jurisdiction to consider

that issue, see United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998),

appellant filed an amended docketing statement to raise two new arguments.

First, he contends that his sentence improperly exceeds the statutory two-year

maximum under § 1326(a) because the government did not allege his prior

aggravated felony conviction in the indictment. Second, he asserts that his

seventy-month sentence is excessive and disproportionate to the crime and

therefore violates the Fifth and Eighth Amendments.




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       The Supreme Court has held that an illegal alien’s prior aggravated felony

conviction is a sentencing factor rather than an element of 8 U.S.C. § 1326, and it

need not be alleged in the indictment.      Almendarez-Torres v. United States       ,

523 U.S. 224, 228-35 (1998). The Court expressly declined to revisit or overrule

Almendarez-Torres in Apprendi v. New Jersey , 530 U.S. 466 (2000).           United

States v. Martinez-Villalva , 232 F.3d 1329, 1331 (10th Cir. 2000). Therefore,

we are still bound by Almendarez-Torres and appellant’s first argument is

without merit.

       Appellant also argues that his sentence is disproportionate to his crime.

The Eighth Amendment prohibits a sentence that is disproportionate to the crime.

Hawkins v. Hargett , 200 F.3d 1279, 1281-82 (10th Cir. 1999) (reviewing Supreme

Court jurisprudence on proportionality),      cert. denied , 121 S. Ct. 83 (2000).

However, “‘successful challenges to the proportionality of particular sentences

should be exceedingly rare.’”       Id. at 1281 (quoting Rummel v. Estelle , 445 U.S.

263, 272 (1980)). We make a threshold comparison of the crime committed and

the sentence imposed to determine if the sentence is grossly disproportionate.           Id.

at 1282 (discussing Harmelin v. Michigan , 501 U.S. 957 (1991)). If it is not, then

we do not consider how appellant’s sentence compares to sentences imposed for

other crimes in the same jurisdiction, or to sentences imposed by other

jurisdictions for the same crime.     Id. at 1281-82.


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      Further, “[w]e must ‘grant substantial deference to the broad authority that

legislatures necessarily possess in determining the types and limits of

punishments for crimes, as well as to the discretion that trial courts possess in

sentencing convicted criminals.’”   United States v. Jones , 213 F.3d 1253, 1262

(10th Cir. 2000) (quoting   Solem v. Helm , 463 U.S. 277, 290 (1983)). Under this

standard, we do not find appellant’s sentence to be grossly disproportionate for

the crime charged under 8 U.S.C. § 1326. His seventy-month sentence was well

below the statutory maximum and was the minimum sentence within the

applicable guideline range.

      AFFIRMED.


                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Chief Judge




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