                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 11 2002
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 00-6407
                                                      (D.C. No. 00-CR-74-C)
 RONNIE GERALD WIGGINS, a/k/a                              (W.D. Okla.)
 Clifton Wiggins, a/k/a Ronald Gerald
 Wiggins, a/k/a Clifton Mack Wiggins,
 a/k/a Ronnie Wiggins,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.



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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 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          This order and judgment is not binding precedent except under the doctrines of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.
      Ronnie Gerald Wiggins appeals from the district court’s decision to

sentence him pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

We have jurisdiction pursuant to 18 U.S.C. 3742(a) and 28 U.S.C. § 1291. We

affirm.



      Mr. Wiggins was indicted and pled guilty to a violation of 18 U.S.C.

§ 922(g)(1), felon in possession of a firearm. Section 922(g)(1) carries a

maximum term of imprisonment of ten years. 18 U.S.C. § 924(a)(2). Mr.

Wiggins argues the district court violated his Fifth Amendment rights to

presentment or indictment from a grand jury and due process of law when it

sentenced him to 200 months in prison under the Armed Career Criminal Act, 18

U.S.C. § 924(e)(1).



      Mr. Wiggins argues he should not have been sentenced under the Armed

Career Criminal Act because his prior convictions were not charged as elements

of the crime in his indictment. He contends a change in judicial alliances between

the issuance of Almendarez-Torres v. United States, 523 U.S. 224 (1998), and

Apprendi v. New Jersey, 530 U.S. 466 (2000), “forecasts a new majority in the

Supreme Court, which will or may likely support recidivism as an element of the

offense.” However, he concedes this court held the sentence provision in the


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Armed Career Criminal Act, 18 U.S.C. § 924(e)(2), is not an element of the

offense in United States v. Dorris, 236 F.3d 582, 587 (10th Cir.), cert. denied,

121 S. Ct. 1635 (2000). Mr. Wiggins brings this appeal in anticipation of action

by the United States Supreme Court overruling Almendarez-Torres, in view of the

five-to-four Apprendi opinion.



      Apprendi acknowledged the narrow exception established in Almendarez-

Torres (1998), applies when the fact used to enhance the sentence is a prior

conviction. Apprendi, 530 U.S. at 489-90. In addition, United States v. Martinez-

Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000), held an indictment that did not

contain a separate charge for prior conviction of an aggravated felony did not

violate the defendant’s constitutional rights.



      We are bound by Almendarez-Torres, Dorris and Martinez-Villalva. See

United States v. Wilson, 244 F.3d 1208, 1216 (10th Cir.), cert. denied, 121 S. Ct.

2619, 122 S. Ct. 186 (2001). “The new rule of Apprendi specifically carves out

the recidivism issue, requiring that facts ‘other than the fact of a prior conviction’

be proven to a jury.” Id. (citation omitted). “There is no way to predict whether

the Supreme Court would overrule Almendarez-Torres on further consideration,

and in fact there may be valid reasons for treating recidivism as an exception to


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Apprendi.” Id. at 1216-17.



      Accordingly, we AFFIRM Mr. Wiggins’ sentence.



                                  Entered by the Court:

                                  WADE BRORBY
                                  United States Circuit Judge




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