                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 11 2001
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 00-1514
 v.
                                                  (D.C. No. 00-CR-307-1)
                                                         (D. Colo.)
 RUBEN CORRAL-CARAVEO,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      In order to preserve the issue for Supreme Court review, Ruben Corral-

Caraveo (“Corral-Caraveo”) appeals his sentence for illegal re-entry on the

ground that it violates Apprendi v. New Jersey, 530 U.S. 466 (2000), even though

he concedes that his appeal is foreclosed by binding Supreme Court and Tenth

Circuit precedent. See Opening Brief at 4, 7, 9-10. We AFFIRM.



      *
        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) and 10th Cir. R. 34.1(G). The case is
therefore 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 This Order and Judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
      On July 25, 2000, the Government indicted Corral-Caraveo for illegal re-

entry in violation of 8 U.S.C. §1326(a). (Doc. 10.) The indictment did not allege

a violation of 8 U.S.C. § 1326(b)(2) (increasing maximum sentence to 20 years in

prison if deportation was subsequent to a conviction of an aggravated felony) ,

nor did it mention that sub-section. On August 18, 2000, Corral-Caraveo and his

lawyer signed a plea agreement in which Corral-Caraveo agreed to plead guilty to

one count of illegal re-entry in return for the Government recommending that

Corral-Caraveo be sentenced at the bottom of the applicable guideline range.

(Doc. 16 at 1.) The plea agreement listed, as “elements of the offense of

conviction,” only the elements of illegal re-entry; it did not list Corral-Caraveo’s

prior conviction of an aggravated felony. (Doc. 16 at 2.) The plea agreement did,

however, state that “the maximum statutory penalty for the offense is: not more

than 20 years in prison” (Doc. 16 at 2) and “[Sentencing Guideline]

§2L1.2(b)(1)(B) applies because the defendant was previously deported after

conviction for an aggravated felony.” (Doc. 16 at 5.)

      Corral-Caraveo pled guilty under the terms of the plea agreement on

September 7, 2000. (Supp. Vol. 1 at 17.) Before accepting his guilty plea, the

court explained to Corral-Caraveo that “the maximum term is twenty years”

(Supp. Vol. 1 at 9) and under the Guidelines he was “subject to a sentence from




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77 to 96 months.” (Supp. Vol. 1 at 10.) Corral-Caraveo affirmed that he

understood the terms of the proposed sentence. (Supp. Vol. 1 at 10.)

      On October 30, 2000, Corral-Caraveo filed an objection to the imposition

of a sentence greater than two years. (Doc. 23.) He argued that “[w]hile the

Supreme Court has previously held that the prior aggravated felony is a

sentencing factor under § 1326, see Almendarez-Torres v. United States, 523 U.S.

224 (1998), that decision has been limited, or alternatively abrogated, by the more

recent decision of Apprendi v. New Jersey, [530 U.S. 466 (2000)].” (Doc. 23 at

1.) At sentencing, on December 4, 2000, Corral-Caraveo conceded that United

States v. Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000), was directly on

point and disposed of his argument. (Vol. 2 at 5.) Accordingly, the court

overruled his objection and sentenced him to 96 months imprisonment, followed

by three years supervised release. (Vol. 2 at 12-13.)

      “We are bound by [Almendarez-Torres] to hold that the fact of defendant’s

prior felony conviction is not an element of the offense with which he was

charged by indictment, but is, instead, a sentencing factor.” United States v.

Martinez Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000) (citing

Almendarez-Torres, 523 U.S. at 235); see also United States v. Dorris, 236 F.3d

582, 587 (10th Cir. 2000) (rejecting defendant’s efforts to challenge the

continuing validity of Almendarez-Torres), cert. denied, 121 S. Ct. 1635 (2001).


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“Consequently, the indictment in this case, which did not separately charge

defendant with a prior aggravated felony conviction, did not violate defendant’s

constitutional rights.” Martinez-Villalva, 232 F.3d at 1332.

      Corral-Caraveo has preserved this issue for appeal to the United States

Supreme Court. We AFFIRM his sentence.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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