                                                                     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



U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

v.

M IGUEL RAM OS-DURAN, also
known as Jerry Garcia, also known as
Jose Luis Duran, also known as Jerry
Domingues, also known as Jose Luis
Ramos Duran, also known as M iguel                     No. 05-4210
Ramos D uran, also known as Luis                     (District of Utah)
M iguel M endoza, also know n as Jose           (D.C. No. 2:05-CR -253-TS)
Luis Ramos, also known as Salvador
Velez, also known as M ario Ramos,
also know n as M iguel Ramos, also
know n as M iguel D. Ramos, also
know n as M iguel Duran Ramos, also
know n as M ario G odina, also known
as Sporty Velez, also known as
Salvador Salcido Jr. Velez,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *




      *
       This order and judgment is not binding precedent, except under the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.
Before M U RPH Y, SE YM OU R and M cCO NNELL, Circuit Judges.


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

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

argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

ordered submitted without oral argument.

      Defendant-Appellant M iguel Ramos-Duran was charged with, and pleaded

guilty to, one count of illegal reentry following deportation, in violation of 8

U.S.C. § 1326. Ramos-Duran w as sentenced to fifty-seven months’

imprisonment, based in part on a sixteen-level enhancement for previous

deportation after a conviction for a crime of violence— unlawful sexual abuse of a

minor. See United States Sentencing Guidelines M anual § 2L1.2(b)(1)(A)(ii).

Ramos-D uran challenges the application of the sixteen-level enhancement in

calculating his sentence. W e assert jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), and affirm.

      The statutory maximum for illegal reentry is tw o years’ imprisonment. 8

U.S.C. § 1326(a). Nevertheless, Ramos-Duran had previously been deported after

conviction for an aggravated felony. Thus, under § 1326(b)(2), he was subject to

a maximum penalty of twenty years’ imprisonment. Ramos-D uran’s indictment,

however, did not allege he had previously been convicted of an aggravated




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felony. 1 Ramos-Duran asserts that, pursuant to the Sixth Amendment, the

government was required to allege his prior conviction in the indictment because

the prior conviction was used to increase his sentence above the prescribed

statutory maximum. W e review constitutional challenges to a sentence de novo.

United States v. Angelos, 433 F.3d 738, 754 (10th Cir. 2006).

      In Almendarez-Torres v. United States, the Supreme Court addressed

whether a violation of § 1326(b)(2) constitutes a separate crime that must be

charged in an indictment. 523 U .S. 224, 228–235 (1998). Noting that Congress

intended the existence of a prior conviction to be a sentencing factor, not an

element of the crime, the Court concluded the fact of a prior conviction need not

be charged in the indictment. Id. at 226, 235. The Court subsequently held, in

Apprendi v. New Jersey, that any fact which increases a sentence beyond the

statutory maximum must be charged in an indictment and proved to a jury beyond

a reasonable doubt. 530 U.S. 466, 490 (2000). The Court, however, carved out

an exception for prior convictions. Id.; see also United States v. Dorris, 236 F.3d

582, 587–88 (10th Cir. 2000) (concluding Apprendi did not overrule Almendarez-

Torres). In doing so, the Court explained a sentencing enhancement based on a

prior conviction does not implicate the same concerns as other enhancements

because prior convictions are “entered pursuant to proceedings with substantial



      1
      Ramos-Duran did admit to a prior conviction for unlawful sexual abuse of
a minor in his plea colloquy.

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procedural safeguards of their own.” Apprendi, 530 U.S. at 488. The exception

for prior convictions was reaffirmed in United States v. Booker. 543 U.S. 220,

244 (2005) (“Any fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by

a plea of guilty or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.”); see also United States v. M oore, 401 F.3d

1220, 1223 (10th Cir. 2005) (concluding Booker did not overrule Almendarez-

Torres). Thus, under current Supreme Court precedent the fact of a prior

conviction need not be charged in an indictment, submitted to a jury, or admitted

by the defendant to increase a defendant’s sentence beyond the statutory

maximum for the crime charged.

      Ramos-Duran acknowledges Almendarez-Torres, but notes the Supreme

Court has questioned its continued validity. See Shepard v. United States, 544

U.S. 13, 27 (2005) (Thomas, J., concurring in part and concurring in the

judgment) (noting “Almendarez-Torres . . . has been eroded by this Court’s

subsequent Sixth Amendment jurisprudence, and a majority of the Court now

recognizes that Almendarez-Torres was w rongly decided”); Apprendi, 530 U.S. at

489 (observing “it is arguable that Almendarez-Torres was incorrectly decided”).

As this court recently observed, however, “[a]lthough the Court may overrule

Almendarez-Torres at some point in the future, it has not done so, we will not

presume to do so for the Court, and we are bound by existing precedent to hold

                                         -4-
that the Almendarez-Torres exception to the rule announced in Apprendi and

extended to the Guidelines in Booker remains good law.” M oore, 401 F.3d at

1224. Ramos-Duran nonetheless wishes to preserve this issue for appeal to the

Supreme Court, and he has done so.

      Ramos-Duran also claims the district court lacked jurisdiction to impose a

sentence in excess of the two-year maximum authorized by 8 U.S.C. § 1236(a).

He argues the district court’s subject matter jurisdiction was limited by the crime

charged in the indictment. The indictment, however, charged Ramos-D uran with

violating 8 U.S.C. § 1236, not a particular subsection of the statute. M oreover, as

discussed above, the government was not required to allege Ramos-Duran’s prior

conviction in the indictment to permit the district court to sentence him beyond

the statutory maximum provided in § 1236(a). In any event, “the failure of an

indictment to allege an essential element of a crime does not deprive a district

court of subject matter jurisdiction.” United States v. Prentiss, 256 F.3d 971, 981

(10th Cir. 2001) (en banc).




                                         -5-
For the foregoing reasons, Ramos-Duran’s sentence is AFFIRM ED.

                             ENTERED FOR THE COURT



                             M ichael R. M urphy
                             Circuit Judge




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