                                                                          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. 00-4199
                                                    (D.C. No. 00-CR-332-B)
    JESUS SALLAS-MORENO,                                   (D. Utah)
    also known as Jesus Arriola-Garcia,

                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      This order and judgment is not binding precedent, except under the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.
      Defendant appeals his sentence following a plea of guilty to one count of

illegal entry following deportation, in violation of 8 U.S.C. § 1326(a). We have

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

      Defendant was sentenced to seventy months’ imprisonment, which included

a sixteen-level enhancement (from a base level of eight) based on his prior

conviction of an aggravated felony.   See 8 U.S.C. § 1326(b)(2); USSG

§ 2L1.2(b)(1)(A). Although he submitted objections to the presentence report, he

did not object to the sixteen-level enhancement for having previously sustained an

aggravated felony. Appellant’s Br. at 3. At the sentencing hearing the district

court granted a downward departure from Category VI to Category V.       Id.

      On appeal, defendant argues that his sentence must be vacated because

§ 1326(b), the statute for the crime of conviction, carries a maximum sentence

of two years’ imprisonment. The basis for his argument is the Supreme Court’s

decision in Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), in which the 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).




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       Defendant acknowledges, as he must, that the Supreme Court has also held

that an indictment need not allege a prior felony conviction in order for a district

court to enhance a sentence because § 1326(b)(2) creates a sentencing factor,

not a separate element of the offense.    See Almendarez-Torres v. United States        ,

523 U.S. 224, 235 (1998). Moreover, this court has squarely held that the

Apprendi Court did not overrule Almendarez-Torres , but rather carved out an

exception by stating 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.’”        United

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

Apprendi , 530 U.S. at 490) (emphasis added). Like       Martinez-Villalva ,

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

and is governed by Almendarez-Torres .” Id.

       Defendant concedes that relief is foreclosed by     Almendarez-Torres and this

court’s decision in Martinez-Villalva , see Appellant’s Br. at 11-12, but seeks to

preserve his argument for review by the Supreme Court in anticipation

Almendarez-Torres will be overruled. He has done so. “Nevertheless,

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




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in this case.” United States v. Dorris , 236 F.3d 582, 587 (10th Cir. 2000),

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

      AFFIRMED.


                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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