                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     January 30, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

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

          Plaintiff-Appellee,
                                                        No. 06-4115
 v.
                                                  (D.C. No. 2:04-CR-30DB)
                                                         (D. Utah)
 ALBERTO GO M EZ-GO M EZ,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.




      M r. Gomez-Gomez pleaded guilty on M ay 13, 2004, before the U.S.

District Court for the District of Utah, on the sole count of re-entry of a deported

alien, which is a violation of 8 U.S.C. § 1326. The indictment listed violation of

8 U.S.C. § 1326 as the only charge, without further reference. The statutory

maximum penalty for reentering the United States after deportation, absent any

other factors, is two years. 8 U.S.C. § 1326(a). However, the statute provides for


      *
       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) 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
enhanced penalties if a reentering alien has a prior conviction. 8 U.S.C. §

1326(b). The indictment did not allege that M r. Gomez-Gomez had any prior

convictions, nor did it cite specifically to 8 U.S.C. § 1326(b).

      However, the district court, applying the U.S. Sentencing Guidelines, gave

M r. Gomez-Gomez an enhanced sentence of 49 months’ imprisonment and three

years’ supervised release because he had previously been convicted of a drug-

trafficking offense that constituted an aggravated felony. A deported alien with

an aggravated felony conviction who reenters the United States is subject to an

enhanced penalty of up to 20 years’ imprisonment. See 8 U.S.C. § 1326(b)(2)

(“[I]n the case of any alien . . . whose removal was subsequent to a conviction for

comm ission of an aggravated felony, such alien shall be fined under such title,

imprisoned not more than 20 years, or both . . .”). Therefore, the 49-month

sentence did not exceed the maximum penalty under that provision.

      On appeal, M r. Gomez-Gomez argues that the enhanced penalty provision

of 8 U.S.C. § 1326(b)(2) is an element of the offense of reentry after deportation,

and that, accordingly, prior convictions triggering the enhanced penalty must be

alleged in the indictment. He contends that because his indictment did not refer

to any prior convictions, the government did not charge him with an element of

the crime for which he was sentenced. Therefore, he argues, the court’s sentence

exceeded the maximum penalty for the crime of reentry after deportation, which

should have been two years.

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      Settled law makes it clear that the enhanced penalty provision of 8 U.S.C. §

1326(b)(2) is not an element of the offense of reentry after deportation, but

instead is a sentencing factor, and therefore need not be alleged in the indictment.

“An indictment must set forth each element of the crime that it charges. But it

need not set forth factors relevant only to the sentencing of an offender found

guilty of the charged crime.” Almendarez-Torres v. United States, 523 U.S. 224,

228 (1998) (citations omitted). In Almendarez-Torres, the Supreme Court

interpreted the statutory language at issue and concluded that Congress intended

to make the enhanced penalty provision of 18 U.S.C. § 1326(b)(2) as “a

sentencing factor” rather than “a separate crime,” observing that the factors are

based on recidivism, a typical sentencing factor Id. at 230.

      M r. Gomez-Gomez argues that this holding is in tension with Apprendi v.

New Jersey, in which the Supreme Court held that most factors triggering a

sentence enhancement beyond the statutory maximum penalty must be submitted

to a jury and proved beyond a reasonable doubt. 530 U.S. 466, 490 (2000).

However, the Court carved out an exception for prior convictions, distinguishing

them from other enhancement factors on the basis of the “procedural safeguards”

inherent to proving the fact of a prior conviction. Id. at 488. As we have noted,

regardless of the dicta in Apprendi casting doubt on Almendarez-Torres, the rule

remains for charged violations of 18 U.S.C. § 1326 that prior convictions are




                                         -3-
mere sentencing factors that need not be alleged in indictments. United States v.

M artinez-Villalva, 232 F.3d 1329, 1331-32 (10th Cir. 2000).

      M r. Gomez-Gomez concedes that the district court correctly applied current

law , and states that he is merely preserving this issue for Supreme Court review.

He has done so. W e conclude that the district court did not err by considering

M r. Gomez-Gomez’s past conviction in applying the enhanced penalty provision

of 8 U.S.C. § 1326(b)(2). W e AFFIRM .


                                       ENTERED FOR THE COURT



                                       David M . Ebel
                                       Circuit Judge




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