                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      June 12, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AM ERICA,
               Plaintiff-Appellee,                      No. 05-4278
          v.                                    (D.C. No. 2:05-CR -319-DS)
 JAVIER CRUZ-NAVARRO,                                     (D. Utah)
               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M cK AY, and LUCERO, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      Appellant pleaded guilty to one count of illegally reentering the United

States in violation of 8 U.S.C. § 1326. He was sentenced to forty-six months’

imprisonment, and judgment was entered by the district court on October 6, 2005.

Appellant filed a timely notice of appeal.



      *
       This order and judgment is not binding precedent, except under the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.
      W hen Appellant was indicted, he was notified that his sentence would be

enhanced based on his prior aggravated felony conviction and that this w ould

result in a sentence of imprisonment of not more than twenty years, pursuant to 8

U.S.C. § 1326(b). H e entered a plea of guilty based on a written plea agreement.

In his statement in advance of the plea, Appellant acknowledged that the

maximum term of imprisonment was twenty years. The presentence report

indicated that Appellant had been previously deported after being convicted for a

felony crime of violence, which triggered a sixteen-level enhancement under

United States Sentencing Guidelines § 2L1.2(b)(1)(A ). The presentence report,

taking into account Appellant’s acceptance of responsibility, concluded that the

applicable guideline range was forty-six to fifty-seven months. Appellant did not

object to the presentence report.

      Appellant argues on appeal that the district court erred when it sentenced

him to a term of imprisonment that exceeds the maximum penalty for the offense

of conviction–illegal reentry following deportation–pursuant to 8 U.S.C. §

1326(a). Because A ppellant did not raise this argument to the district court, w e

review for plain error. United States v. M alone, 222 F.3d 1286, 1292 (10th Cir.

2000). To establish plain error, Appellant “must show: (1) an error, (2) that is

plain, which means clear or obvious under current law, and (3) that affect[s]

substantial rights.” United States v. Whitney, 229 F.3d 1296, 1308 (10th Cir.

2000) (internal quotation omitted). If Appellant satisfies the first three elements,

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“we may exercise discretion to correct the error if it seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” Id. (internal

quotation omitted). As we do not conclude that Appellant has established error,

we do not reach the remaining elements.

      Appellant contends that his sentence of forty-six months’ imprisonment is

illegal because it exceeds the maximum penalty for the crime. Although it is true

that Appellant pleaded guilty to violating § 1326(a) which carries a maximum

penalty of two years’ imprisonment, the maximum penalty increases to twenty

years if the defendant has a prior aggravated felony conviction under § 1326(b).

Since Appellant had been previously convicted of an aggravated felony, the

district court properly applied the sixteen-level sentencing enhancement.

      The United States was not required to allege Appellant’s prior aggravated

felony conviction in the indictment for § 1326(b) to apply. In Almendarez-Torres

v. United States, 523 U.S. 224, 247 (1998), the Supreme Court ruled that the

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

element of the offense that must be pled in an indictment charging a violation of 8

U.S.C. § 1326. W e have recently held that Almendarez-Torres remains good law

after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005). See United States v. M oore, 401 F.3d 1220, 1223-24 (2005) (noting that

the Booker majority “explicitly confirmed the prior conviction exception”).




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Consequently, we A FFIR M the district court’s sentence and judgment.

                                      Entered for the Court



                                      M onroe G. M cKay
                                      Circuit Judge




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