                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 4 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-2048
                                                   (D.C. No. CR-99-871-JC)
    ROEL LEE LAHI,                                        (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, 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.

         Defendant Roel Lee Lahi pleaded guilty to two counts of sexual assault

on a child in violation of 18 U.S.C. §§ 1153(a), 2241(c), and 2246(2)(A) and (D).



*
      This order and judgment is not binding precedent, except under the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.
As part of the plea, Mr. Lahi stipulated that he had 1) used force in committing

the offenses, and 2) that the victims were under his care and custody at the time

the crimes occurred. At sentencing, the court imposed enhancements based on

those stipulations.

      In this appeal, he presents a single issue for the court’s consideration. Mr.

Lahi maintains, pursuant to Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), that

his sentence must be vacated because he was not put on notice that he was subject

to increased penalties under the Sentencing Guidelines. Specifically, he argues

the district court’s application of the sentencing enhancements violates Apprendi.

Because we conclude Mr. Lahi has not presented a colorable Apprendi claim,

however, we dismiss this matter for lack of jurisdiction under 18 U.S.C.

§ 3742(a).

      The only relief which Mr. Lahi seeks is remand for new sentencing. Thus,

we turn first to 18 U.S.C. § 3742(a) for guidance in determining the proper scope

of our jurisdiction. Under that statute, we possess jurisdiction to review

sentences imposed “in violation of law, or as a result of an incorrect application

of the Guidelines.” See United States v. Garcia, 919 F.2d 1478, 1479 (10th Cir.

1990). Because Mr. Lahi argues neither with specificity, the United States

maintains we have no authority to consider the issue presented.




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      In contrast, appellant maintains, based on the Apprendi decision, that the

issue presented is not one related to sentencing, but rather, one regarding the

sufficiency of the indictment. Mr. Lahi argues the indictment was flawed because

it did not mention either the “use of force” or “care and custody” enhancement

factors which were used to increase Mr. Lahi’s sentence. He maintains the failure

to mention those factors in the indictment renders it insufficient to support the

crime charged. See United States v. Bullock, 914 F.2d 1413, 1414 (10th Cir.

1990) (noting “that the failure of an indictment to state an offense is a fatal defect

that may be raised at any time”). The argument follows that the resulting

sentence is, therefore, illegal.

      The essence of Mr. Lahi’s argument relates to the sentence itself.

Specifically, he maintains the indictment did not include elements which were

essential to the sentencing procedure. He does not take issue with any other

aspect of the process, and, indeed, admits that prior to Apprendi there was no

constitutional issue to raise. Moreover, he does not seek remand to withdraw his

guilty plea to begin the process over. Rather, he seeks only reconsideration of the

sentence. Thus, it is the sentence, and not the indictment procedure, which is at

the core of his argument.

      Although not argued as such in the opening brief, we conclude this is an

argument regarding the constitutional validity of the sentence. See Garcia, 919


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F.2d at 1479-81 (discussing legislative history of § 3742(a) and noting

Congressional intent to limit review of sentences imposed within a proper

Guideline range); see also United States v. Neary, 183 F.3d 1196, 1198 (10th Cir.

1999) (defining facially illegal sentences “as those based on race, gender, or other

considerations contravening clearly established public policy”). Consequently,

we consider the arguments presented in that context.

      In doing so, however, we conclude Mr. Lahi does not state a reviewable

claim. He maintains Apprendi applies to cases where, as here, the sentence

imposed is within the statutory maximum. This argument is unavailing. See

United States v. Hishaw, No. 99-6258, 2000 WL 1862788 (10th Cir. Dec. 20,

2000) (concluding defendant could not prevail in showing plain error on Apprendi

claim where he admitted cocaine possession and received a sentence within the

statutory maximum proved at trial).

      The maximum penalty for the crime charged is life imprisonment.

18 U.S.C. § 2241(c). Mr. Lahi was sentenced to 188 months’ imprisonment. That

is at the low end of the applicable guideline range and is significantly lower than

the potential maximum. Because the sentence is well below the maximum

penalty, Mr. Lahi has not presented a colorable Apprendi claim. United States v.

Doggett, 230 F.3d 160, 166 (5th Cir. 2000); United States v. Angle, 230 F.3d 113,

121 (4th Cir. 2000); United States v. Mack, 229 F.3d 226, 235 n.12 (3d Cir.


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2000); United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.), cert.

denied, ___ U.S. ___, No. 00-6746, 2000 WL 1634209 (U.S. Nov. 27, 2000); see

also United States v. Jones, Nos. 97-1377 & 97-1463, 2000 WL 1854077 (10th

Cir. Dec. 19, 2000) (concluding district courts may not impose a sentence in

excess of the statutory maximum unless drug quantity is included in the

indictment and proven beyond a reasonable doubt). As a result, he cannot make

an arguable “violation of law” claim under § 3742(a). 1

      Consequently, the appeal is DISMISSED.



                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




1
  We express no view on whether this result would change under a different
factual scenario.

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