                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 29 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 01-4136
v.                                                   (District of Utah)
                                                  (D.C. No. 00-CR-611-K)
ANDRES NAVA-HERNANDEZ,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


      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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Defendant Andres Nava-Hernandez pleaded guilty to illegal reentry

following deportation, in violation of 8 U.S.C. § 1326(a). Violation of this


      *
       This order and judgment is not binding precedent, except under the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.
statute carries a maximum prison sentence of two years, but § 1326(b)(2) provides

for an enhanced prison term of up to twenty years for those who reenter the

country illegally and have a previous aggravated felony conviction. On the same

day that Nava-Hernandez was indicted for violating § 1326, the United States

filed a Notice of Sentencing Enhancement (the “Notice”). The Notice advised

Nava-Hernandez that he was subject to the enhanced penalties set out in §

1326(b) based on a prior aggravated felony conviction. In a written statement

made in advance of his guilty plea, Nava-Hernandez acknowledged that the

maximum term of imprisonment he was facing was twenty years. Furthermore, in

calculating the appropriate sentence, the Presentence Report increased Nava-

Hernandez’s offense level by sixteen points pursuant to United States Sentencing

Guideline § 2L1.2(b)(1)(A) based on his prior aggravated felony. Nava-

Hernandez did not lodge any objections to the Presentence Report. The district

court ultimately sentenced Nava-Hernandez to a term of imprisonment of seventy

months.

      On appeal, Nava-Hernandez relies on Apprendi v. New Jersey, 530 U.S. 466

(2000), to argue that his sentence exceeds the maximum penalty for the offense

because the fact of his prior conviction was not submitted to a jury or proved

beyond a reasonable doubt. Apprendi, however, acknowledged that a narrow

exception to this general rule, established in Almendarez-Torres v. United States,


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523 U.S. 224 (1998), applies when the fact used to enhance the sentence is a prior

conviction. Apprendi, 530 U.S. at 490. Relying on Almendarez-Torres, this court

has held that an indictment which does not contain a separate charge for prior

conviction of an aggravated felony does not violate constitutional rights. United

States v. Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000). This panel is

bound by Almendarez-Torres and therefore rejects Nava-Hernandez’s arguments.

      Nava-Hernandez concedes that the relief he seeks is foreclosed by

Almendarez-Torres and Martinez-Villalva, but seeks to preserve his argument for

review by the Supreme Court in the event that Almendarez-Torres is overruled.

He has done so. See McKnight v. Gen. Motors Corp., 511 U.S. 659, 660 (1994).

“Nevertheless, Almendarez-Torres has not been overruled and directly controls

our decision in this case.” See United States v. Dorris, 236 F.3d 582, 587 (10th

Cir. 2000). Accordingly, the sentence imposed by the United States District Court

for the District of Utah is AFFIRMED.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




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