                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JUN 12 2003
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                          No. 01-4255
                                                      (D.C. No. 2:00-CR-455-ST)
 CAYETANO MORENO-VALLES,                                      (D. Utah)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HARTZ,
Circuit Judge.


       This is a United States Sentencing Guidelines (“U.S.S.G.”) case.

       On September 27, 2000, Cayetano Moreno-Valles (“Moreno”) was charged in the

United States District Court for the District of Utah in a one-count indictment with having

been arrested and deported from the United States on or about November 8, 1999, by the

Central Division of the District of Utah, and thereafter “was present and was found in the

United States in the District of Utah, having not obtained the consent of the Attorney



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
General of the United States to reapply for admission into the United States,” in violation

of 8 U.S.C. § 1326. At the same time, the United States filed a Notice of Sentencing

Enhancement advising Moreno that, because he had previously been convicted of four

predicate aggravated felony convictions, if he was convicted on the charge that he had

violated 8 U.S.C. § 1326, he would be subject to a sentence of imprisonment of not more

than 20 years.

       After a series of preliminary hearings, the district court allowed Moreno to

represent himself at trial, and standby counsel was appointed to assist him at trial.

       Moreno indicated to the court that his primary defense at trial would be that he had

never been legally deported from the United States. However, prior to trial, the district

court ruled that Moreno could not collaterally attack the legality of his prior deportations

and ordered that evidence regarding the validity of his several prior deportations would

not be admitted at trial. See 8 U.S.C. § 1326(d). The ensuing trial resulted in a jury

verdict that Moreno was guilty as charged.

       The presentence report set Moreno’s base offense level at 8 and increased that

level by 16 under U.S.S.G. § 2L1.2(b)(1)(a), giving an adjusted offense level of 24. The

presentence report reduced Moreno’s adjusted offense level by two levels, giving a total

offense level of 22, for his acceptance of responsibility under U.S.S.G. §3E1.1(a). That

guideline provides as follows:

                 §3E1.1 Acceptance of Responsibility
                        (a) If the defendant clearly demonstrates

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                    acceptance of responsibility for his offense,
                    decrease the offense level by 2 levels.
                     (b) If the defendant qualifies for a decrease
                    under subsection (a), the offense level
                    determined prior to the operation of subsection
                    (a) is level 16 or greater, and the defendant has
                    assisted authorities in the investigation or
                    prosecution of his own misconduct by taking
                    one or more of the following steps:
                             (1) timely providing complete
                             information to the government
                             concerning his own involvement
                             in the offense; or
                             (2) timely notifying authorities of
                             his intention to enter a plea of
                             guilty, thereby permitting the
                             government to avoid preparing for
                             trial and permitting the court to
                             allocate its resources efficiently,
                    decrease the offense level by 1 additional level.
                    (Emphasis added).

      In regard to his “acceptance of responsibility,” the pre-sentence report contained

the following:

             10. Adjustment for Acceptance of Responsibility
                   The defendant has accepted full responsibility for his
                   actions in the instant offense by admitting that he is a
                   citizen of Mexico, that he had been previously
                   convicted for a felony, after which he was deported,
                   and that he is presently in the United States illegally.
                   He contests, however, that he has ever been “legally”
                   deported; and it was on this point that he had hoped to
                   win his case before the jury.

      The United States filed objections to the presentence report’s recommendation that

Moreno be given a two-level reduction of his offense level based on acceptance of


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responsibility. Moreno, through his standby counsel, stated that he had no objection to

the presentence report. In response to the United States’ objections to the presentence

report, standby counsel for Moreno filed a memorandum wherein he stated, in part, that

“[c]ontrary to the position of the government, Mr. Moreno-Valles concurs in the

statement of the writer of the Report that he accepted responsibility with respect to the

elements of the offense in this action.”

       At sentencing, the district court overruled the United States’ objection to the two-

level reduction of Moreno’s offense level for his acceptance of responsibility with the

following comment:

              [U]nder the very unique circumstances in this case, the Court
              believes that the application of the two-level reduction would
              be appropriate, because, again, I don’t believe [Moreno] made
              any effort to assert that the elements of the case were not true,
              but relied over and over again on his claims that it was the
              prior deportations that were illegal and I think that is unique
              enough that the application of the two-level reduction is
              appropriate.

       With the two-level reduction of Moreno’s offense level under U.S.S.G. § 3E1.1(a),

Moreno had an adjusted offense level of 22, and that level coupled with his criminal

history category of V, set his guideline range at 77 to 96 months imprisonment. The

district court then sentenced Moreno to 77 months imprisonment.

                                             I.

       Counsel asserts that in sentencing Moreno, the district court committed plain error

under Fed. R. Crim. P. 52(b) when it failed to give Moreno an additional one-level

                                            -4-
reduction of his base offense level, under U.S.S.G. §3E1.1(b)(1). If Moreno’s adjusted

base offense level had been reduced from 22 to 21, the latter, coupled with a criminal

history category of V, would have resulted in a guideline range of 70 to 87 months

imprisonment. Counsel’s argument is that by virtue of the presentence report, as well as

through knowledge otherwise acquired by the district court at trial and in preliminary

hearings prior to trial, the district court, after granting Moreno a two-level reduction for

acceptance of responsibility under U.S.S.G. §3E1.1(a), committed plain error when

thereafter, it failed to, sua sponte, grant Moreno an additional one-level reduction under

U.S.S.G. §3E1.1(b)(1).

       Under U.S.S.G. §3E1.1(b), a defendant who has received a two-level reduction to

his offense level for “acceptance of responsibility” under § 3E1.1(a), is, if his offense

level before the two-level reduction is greater than 16 levels, not automatically entitled to

an additional one-level reduction under §3E1.1(b)(1). Rather, under § 3E1.1(b)(1) a

defendant, in order to get an additional one-level reduction, must have “assisted

authorities in the investigation or prosecution of his own misconduct by . . . . (1) timely

providing complete information to the government concerning his own involvement in the

offense.” We are not persuaded by any suggestion that, at the time of sentencing, the

district court “knew” of all the facts that would compel it to make, sua sponte, an

additional one-level reduction in defendant’s offense level under U.S.S.G. § 3E1.1(b)(1).

See United States v. Battle, 289 F.3d 661 (10th Cir. 2002); United States v. Jones, 80 F.3d



                                             -5-
436 (10th Cir. 1996). (In each of those cases, the defendant did not, in fact, ask for a

deduction under § 3E1.1(b)(1) and in each case this Court held that the failure of the trial

court to, sua sponte, grant an additional one level reduction under that guideline involves

a “factual issue” and is reviewed by us for “plain error.”)

       As indicated, at sentencing neither the defendant, representing himself, nor his

standby counsel, who does not represent Moreno on appeal, asked the district court to

reduce Moreno’s offense level by an additional level under U.S.S.G. § 3E1.1(b). In fact,

no objection to the presentence report, which only recommended a two-level reduction of

Moreno’s offense level under U.S.S.G. § 3E1.1(a), was filed by defendant or his standby

counsel. However, in response to the government’s objections to any reduction in

Moreno’s offense level under U.S.S.G. §3E1.1, standby counsel “concurred” in writing to

the presentence report’s comment that Moreno “accepted responsibility with respect to

the elements of the offense in this action.” No claim was ever made in the district court

that Moreno was entitled to an additional one-level reduction under 3E1.1(b) because he

had “assisted authorities in the investigation or prosecution of his own misconduct.”

Under such circumstances, we are not inclined to hold that the district court committed

“error” and affected “substantial rights,” in which event, if we so found, we could, in the

exercise of our discretion, correct the “forfeited error” if the “error seriously affects the

fairness, integrity or public reputation of judicial proceedings.” United States v. Olano,

507 U.S. 725, 732 (1993). That is not our case.



                                              -6-
                                              II

       Counsel also argues for “purposes of [possible] further review,” that the

indictment and instructions in this case violate Apprendi v. New Jersey, 530 U.S. 466

(2000) “in failing to plead the prior aggravated felony conviction as an element of the

crime [charged in the indictment], and to instruct the jury that it had to find that prior

conviction beyond a reasonable doubt, for purposes of increasing the applicable statutory

maximum penalty from two years to twenty years.”

       In thus arguing, counsel recognizes that in Apprendi, the Supreme Court 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.” Counsel also acknowledges that we have explicitly held that failure

of an indictment to charge the defendant separately with a prior aggravated felony

conviction does not violate Apprendi. United States v. Martinez-Villalva, 232 F.3d 1329,

1332 (10th Cir. 2000). We see no Apprendi violation in the instant case.

       Judgment affirmed.



                                                   ENTERED FOR THE COURT



                                                   Robert H. McWilliams
                                                   Senior Circuit Judge




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