                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 5 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 01-8033
 v.
                                                (D.C. No. 00-CR-114-01-D)
                                                      (D. Wyoming)
 RAUL SOLIS-MUELA,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      Defendant-Appellant, Raul Solis-Muela, was indicted on July 20, 2000 for

being a previously deported illegal alien who was found in the United States

without first having obtained the consent of the Attorney General to apply for re-

admission in violation of 8 U.S.C. § 1326 (a)(2) and (b)(1). Solis-Muela entered

into a plea agreement with the government, and on October 30, 2000, he entered a



      *
        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 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
guilty plea pursuant to the terms of that agreement. In March 2001, he filed a

motion to withdraw his guilty plea so that he could pursue an application for

permanent legal resident status under 8 U.S.C. § 1255(i) and the 2000 Life Act

Amendments. The court denied that motion, and gave Solis-Muela an enhanced

sentence based on his prior aggravated felonies, which were not a part of his

indictment. 1

      On appeal, Solis-Muela challenges the district court’s denial of his motion

to withdraw his guilty plea and claims that the failure to include his prior

aggravated felonies in his indictment runs afoul of Apprendi v. New Jersey, 530

U.S. 466 (2000). We reject these claims and affirm the district court’s decision.

      We review a district court’s denial of a motion to withdraw a guilty plea for

abuse of discretion. United States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000).

The burden is on the defendant to show a “fair and just reason” for the

withdrawal of his guilty plea. United States v. Black, 201 F.3d 1296, 1299 (10th

Cir. 2000). In this case, Solis-Muela does not assert that his guilty plea was

unknowing or involuntary, nor did he assert his actual innocence in his motion to




      1
        Solis-Muela was convicted of unlawfully disposing of stolen property in
1986, and deported from the United States shortly after serving his sentence. In
June, 1999, he was arrested for being found in the United States after previously
being deported in violation of 8 U.S.C. § 1326, convicted of that offense, and
deported again in April, 2000.

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withdraw his plea. 2 Instead, he urged the court to allow the withdrawal of his

guilty plea because he believed that he was eligible for an adjustment of status to

that of a permanent legal resident pursuant to 8 U.S.C. § 1255 (i) and Pub. L. No.

106-554, §§ 1502-04, 114 Stat. 2763, 2763A-324 (Dec. 21, 2000) (“Life Act

Amendments”). The Life Act Amendments extended the time during which an

alien physically but unlawfully present in the United States could seek an

adjustment of status, pushing back the application deadline from January 14, 1998

until April 30, 2001. This Amendment, however, did not become effective until

December 21, 2000, and it did not contain any retroactive provisions. Thus, at the

time Solis-Muela entered his guilty plea, the deadline had not been extended and

he could not have made an application to have his status adjusted under 8 U.S.C.

§ 1255(i).

      In addition to the fact that the Amendment had not yet been enacted at the

time of Solis-Muela’s guilty plea, it is unlikely that he would have been eligible

for a status adjustment even if he had made a timely application. In order to

receive the discretionary status adjustment under § 1255(i), an alien must be


      2
         These are some of the factors that a district court should consider in
determining whether to grant a motion to withdraw. See United States v. Kramer,
168 F.3d 1196, 1202 (10th Cir. 1999). The others are: (1) whether the government
will be prejudiced if the motion is granted; (2) whether the defendant has delayed
in filing the motion; (3) inconvenience to the court if the motion is granted; (4)
the quality of the defendant’s assistance of counsel; and (5) whether the granting
of the motion would cause a waste of judicial resources. Id.

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“eligible to receive an immigrant visa and [be] admissible to the United States for

permanent residence.” § 1255(i)(2)(A) (emphasis added). An alien who has been

ordered removed from the United States, as Solis-Muela has, makes an alien

inadmissible under 8 U.S.C. § 1182(a)(9)(A)(ii). Therefore, as the district court

found, his chances of receiving a status adjustment, even with a timely

application, were dim at best.

      Because Solis-Muela has not shown that the district court unfairly or

unjustly denied his motion to withdraw his guilty plea, we find no abuse of

discretion by the court in doing so.

      We review de novo Solis-Muela’s second claim, that his enhanced sentence

ran afoul of Apprendi because the indictment did not include his prior aggravated

felony. We find this claim foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998), and Tenth Circuit precedent. In Almendarez-Torres, a

factually similar case dealing with a conviction under §1326 where the indictment

did not state a prior aggravated felony, the Court held that prior felony

convictions were sentence enhancements, not elements of an offense. Id. at 235.

Further, the Court in Apprendi specifically carved out an exception for prior

felony convictions from its general rule that any elements of a crime must be

charged and proven beyond a reasonable doubt. 530 U.S. at 590 (“[O] ther than

the fact of a prior conviction, any fact that increases the penalty for a crime


                                         -4-
beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.”). This court has previously recognized the authority

of these two opinions with respect to enhanced sentences resulting from prior

felony convictions. See United States v. Dorris, 236 F.3d 582, 587-88 (10th Cir.

2000). Thus, we find Solis-Muela’s argument regarding his enhanced sentence

unavailing and conclude that his sentence was not unlawfully enhanced.

         For the aforementioned reasons, we AFFIRM the decision of the district

court.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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