                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 16 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-6408
                                                    (D.C. No. CR-00-90-M)
    JUAN CARLOS TAPIA,                                   (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before HENRY , ANDERSON , 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.




*
      This order and judgment is not binding precedent, except under the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.
       Juan Carlos Tapia appeals from a final judgment in his criminal case. He

was convicted of one count of being found in the United States after being

deported without the permission and consent of the Attorney General.        See 8

U.S.C. § 1326(a). He received a sentence of forty-six months’ imprisonment,

followed by two years’ supervised release.

       Violation of § 1326(a) carries a maximum penalty of not more than two

years in prison. Where, however, the defendant’s removal was subsequent to a

conviction of an aggravated felony, the maximum penalty increases to twenty

years. See 8 U.S.C. § 1326(b)(2). The district court applied a 16-level sentencing

enhancement pursuant to USSG § 2L1.2(b)(1)(A) because it found that Tapia had

a prior conviction for illegal possession of a firearm, an aggravated felony

pursuant to 8 U.S.C. § 1101(a)(43).

       Tapia contends, relying on      Apprendi v. New Jersey , 530 U.S. 466 (2000),

that the prior aggravated felony should have been alleged in the indictment and

pleaded and proved beyond a reasonable doubt. He essentially concedes that this

argument is foreclosed if    Almendarez-Torres v. United States    , 523 U.S. 224,

226-27 (1998), remains good law. Tapia argues, however, that         Apprendi has

implicitly overruled Almendarez-Torres .

       We have previously rejected this contention. “The       Apprendi Court

specifically declined to revisit or overrule     Almendarez-Torres .” United States v.


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Martinez-Villalva , 232 F.3d 1329, 1331 (10th Cir. 2000). Instead, in     Apprendi ,

the Supreme Court specifically carved out an exception for the rule of

Almendarez-Torres , by holding that the fact of a prior conviction need not be

submitted to a jury and proved beyond a reasonable doubt.      Id. at 1332. 1

Almendarez-Torres applies here, and the district court therefore did not err by

applying the prior aggravated felony enhancement.

      For the foregoing reasons, the judgment of the United States District Court

for the Western District of Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge




1
      In addition, under Apprendi and Almendarez-Torres , the fact of the prior
conviction need not be included in the indictment.       See United States v. Wilson ,
244 F.3d 1208, 1216 (10th Cir. 2001),      cert. denied , 2001 WL 606873
(U.S. June 29, 2001) (No. 00-10289).

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