                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 22 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellant,

    v.                                                    No. 00-1458
                                                    (D.C. No. 00-CR-212-N)
    MIGUEL CHAVES MORENO,                                  (D. Colo.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before PORFILIO , ANDERSON , and BALDOCK , 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.

         Defendant was indicted for and pleaded guilty to one count of violating

8 U.S.C. § 1326(a), which prohibits a noncitizen alien from reentering the

United States after deportation. The maximum penalty under the statute is two


*
      This order and judgment is not binding precedent, except under the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.
years in prison. Subsection (b) of the statute increases the maximum possible

penalty to twenty years in prison if the defendant committed an aggravated felony

before deportation. 8 U.S.C. § 1326(b). Defendant’s indictment did not allege

a violation of § 1326(b), nor did it contain language charging that he had

previously committed an aggravated felony.

       While acknowledging that application of the relevant sentencing guidelines

would result in a longer prison term, the district court nevertheless sentenced

defendant to twenty four months in prison. The court stated that it regarded this

as the maximum sentence available under the offense charged in the indictment.

It based its ruling on the United States Supreme Court’s recent decision in

Apprendi v. New Jersey , 120 S. Ct. 2348 (2000) (to be reported at 530 U.S. 466).

       According to the district court,   Apprendi effectively overruled an earlier

Supreme Court decision,     Almendarez-Torres v. United States      , 523 U.S. 224

(1998). Interpreting the very statute at issue here,      Almendarez-Torres held that

the existence of a prior conviction is merely a sentencing factor, not a separate

element of the offense to which the full panoply of due process protections

attach. Id. at 235. As a consequence, said         Almendarez-Torres , the twenty year

prison term set forth in 8 U.S.C. § 1326(b) may apply even where the indictment

failed to allege that the defendant had a prior aggravated felony conviction.

Id. at 227, 235.


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       On appeal, the government argues that         Apprendi did not overrule

Almendarez-Torres, and that the district court therefore erred in imposing a

two year sentence on defendant. The government is correct.

       Apprendi 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 2362-

63 (emphasis added). As the language quoted above plainly states, the          Apprendi

rule is subject to an explicit exception, one the Supreme Court intended to shield,

at least for the present moment,        Almendarez-Torres.

       Granted, as the district court noted,     Apprendi expressed misgivings about

whether Almendarez-Torres was correctly decided.             See Apprendi, 120 S. Ct.

at 2362 (stating “it is arguable that      Almendarez-Torres was incorrectly decided”).

And as defendant observes, Justice Thomas wrote a concurring opinion in

Apprendi , in which he explicitly stated that he had erred in joining the narrow,

five-four majority in Almendarez-Torres . Id. at 2379 (Thomas, J., concurring).

       But it is equally true that the     Apprendi Court specifically declined to

overrule its earlier decision, treating     Almendarez-Torres as “a narrow exception

to the general rule” it announced in       Apprendi . Id. at 2362. Additionally, this

court has quite recently published two opinions making it unmistakably clear that

Almendarez-Torres remains binding authority within this circuit.          See United


                                               -3-
States v. Martinez-Villalva , 232 F.3d 1329, 1332 (10th. Cir. 2000) and   United

States v. Dorris , 236 F.3d 582, 587 (10th. Cir. 2000). The district court, we note,

did not have the benefit of these decisions at the time it rendered sentence.

      Until and unless the Supreme Court overrules    Almendarez-Torres , that

decision will continue to govern this case and others like it. This case is

REMANDED to the United States District Court for the District of Colorado with

instructions to vacate the sentence previously entered and to enter a new sentence

consistent with this decision.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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