                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            JUN 5 2001

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 00-3358
 v.                                            (D.C. No. 00-CR-10082-MLB)
                                                          (Kansas)
 CARLOS ORANTES-MENDEZ,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      Carlos Orantes-Mendez was convicted of illegally reentering the United

States after deportation, in violation of 8 U.S.C. § 1326(a). Violations of that

statute carry a maximum prison term of two years. However, section 1326(b)(2)


      *
       After examining appellant’s brief and the 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) 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judgment is not binding precedent, except under the doctrines of law of the case,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, or 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.
provides enhanced prison terms of up to twenty years for those who reenter the

country illegally after a previous aggravated felony conviction. In light of Mr.

Orantes-Mendez’ prior aggravated felony conviction, he was sentenced to fifty-

seven months in prison.

      Relying on Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and United

States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000), Mr. Orantes-Mendez

argues his enhanced sentence is invalid because the fact of the prior conviction

was not specified in his indictment. This argument disregards the explicit

language of Apprendi, which limited its application to facts “other than a prior

conviction.” 466 U.S. at 490. Prior felony convictions remain a valid basis for

sentencing enhancements under Almendarez-Torres v. United States, 523 U.S. 224

(1998). See also United States v. Martinez-Villalva, 232 F.3d 1329, 1331-1332

(10th Cir. 2000) (prior felony remains sentencing factor for section 1326 offense

after Apprendi).

      Mr. Orantes-Mendez acknowledges these holdings and asserts that he

makes his current argument in order to preserve the issue for further appeal.

Nevertheless, based upon existing law his appeal must be DENIED.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge


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