                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 15 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-1501
                                                    (D.C. No. 94-CR-210-Z)
    DEDRICK SHAWN CALDWELL,                                (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and LUCERO , 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      This order and judgment is not binding precedent, except under the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.
       This is the third sentencing-related appeal in this case. Defendant Dedrick

Shawn Caldwell was convicted by a jury of one count of unlawful possession with

intent to distribute and distribution of more than five grams of cocaine base, in

violation of 21 U.S.C. § 841(a)(1). Prior to trial, the government filed an

information pursuant to 21 U.S.C. § 851, alleging that defendant had a prior

felony drug conviction that would enhance his statutory maximum sentence.

       In addition to this enhancement of the statutory sentence resulting from the

prior felony drug conviction, defendant was also subject to an enhanced guideline

sentence as a career offender. The district court found that he had at least two

prior violent or drug-related felony convictions.   See United States Sentencing

Guidelines Manual § 4B1.1 (2000) (USSG). Defendant does not contest his status

as a career offender in this appeal.

       The district court, relying on an Application Note to the career offender

guideline then in place,   see USSG § 4B1.1, App. note 2 (1994), sentenced

defendant to a term of 262 months in prison. In defendant’s first appeal in this

case, we (1) affirmed his conviction; (2) rejected his contention that the district

court erred by refusing to depart downward from the career offender guideline;

and (3) acting on a cross-appeal filed by the government, vacated defendant’s




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sentence and remanded for recalculation of the guideline amount.         United States

v. Caldwell , Nos. 95-1003, 95-1023, 1996 WL 185749 (10th Cir. Apr. 17, 1996).           1



       On remand for resentencing, the district court granted defendant’s motion

for a downward departure from the career offender guideline. It departed to a

guideline range of 140 to 175 months based on an offense level of 28–the

applicable offense level without the career offender enhancement–and a criminal

history category of VI. Based on the departure, the district court sentenced

defendant to 175 months’ imprisonment. The government appealed this sentence,

and we again remanded with instructions to the district court to resentence

defendant within a guideline range of 360 months to life imprisonment.         United

States v. Caldwell , 219 F.3d 1186 (10th Cir. 2000).

       Before defendant could be resentenced, however, the United States

Supreme Court decided the case of      Apprendi v. New Jersey , 530 U.S. 466 (2000).

Consequently, defendant filed a motion pursuant to 28 U.S.C. § 2255, seeking to

correct his sentence in light of   Apprendi . Defendant argued that   Apprendi

required the jury to be instructed upon and to find two elements that affected the

length of his sentence: (1) the quantity of the controlled substance involved in


1
      The district court had applied a guideline range of 262 to 327 months’
imprisonment based on a career offender level of 34 and a criminal history
category of VI. We remanded for resentencing within a guideline range of
360 months to life imprisonment based on a career offender offense level of 37,
the correct offense level in view of the enhanced statutory sentence.

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the offense; and (2) the fact of his prior convictions leading to the statutory

enhancement and career offender status. Since the jury had not been required to

find the drug quantity applicable to his offense, defendant contended that he could

only receive a statutory maximum sentence of twenty years under the catch-all

provision of 21 U.S.C. § 841(b)(1)(C) (enhanced to thirty years based on his prior

felony drug conviction,    see id. ). He further argued that since the jury had not

found that he had the requisite prior felony convictions, he was not subject to the

career offender enhancement or the maximum sentence enhancement to thirty

years pursuant to § 841(b)(1)(C).

       The government conceded that because the jury had not found the drug

quantity, defendant could only be sentenced under § 841(b)(1)(C) to a maximum

statutory term of thirty years. It contended, however, that     Apprendi had not

overruled the holding in   Almendarez-Torres v. United States     , 523 U.S. 224

(1998), that the fact of a prior conviction is not an element of the offense that

must be pled in the indictment and found by the jury. Therefore, it rejected the

remainder of defendant’s arguments.

       The district court agreed with the government’s position. It calculated

defendant’s guideline sentence as follows. Because        Apprendi required that the

maximum statutory sentence be adjusted to thirty years, the offense statutory

maximum for purposes of the career offender guideline was now “25 years


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or more” rather than “life.”   See USSG § 4B1.1. Therefore, defendant’s offense

level under the career offender guideline was 34, and his Criminal History

category was VI.     See id. This created a guideline range of 262 to 327 months.

The district court sentenced defendant at the lower end of this range, to 262

months.

       In this appeal, defendant contends that       Apprendi also required that the jury

be allowed to determine whether he had a prior felony drug conviction that raised

the applicable offense statutory maximum under § 841(b)(1)(C) from twenty years

to thirty years, and thus, whether his offense level under the career offender

guideline should have been 32 rather than 34.         See USSG § 4B1.1. Defendant

concedes that his argument is foreclosed by         Almendarez-Torres as well as by prior

circuit precedent.   See United States v. Martinez-Villalva     , 232 F.3d 1329, 1332

(10th Cir. 2000). He states he has raised his       Apprendi argument in order to

preserve it for further review in the event that the Supreme Court overrules

Almendarez-Torres . Since we are bound by Almendarez-Torres and prior panel

decisions concerning this issue, however, we cannot grant anticipatory relief and

must affirm defendant’s sentence.     See United States v. Dorris , 236 F.3d 582, 587

(10th Cir. 2000), cert. denied , 121 S. Ct. 1635 (2001).




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      The judgment of the United States District Court for the District of

Colorado is AFFIRMED. E. Richard Toray’s motion to withdraw as defendant’s

counsel is GRANTED. The clerk of court is directed to find and appoint

replacement counsel pursuant to 18 U.S.C. § 3006A within ten days of the entry

of this order and judgment.


                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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