                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 5 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                          No. 00-3412
                                                               (D. Kan.)
 JOSE CIPRIANO MENDIAS-CHAVEZ,                      (D.Ct. No. 00-CR-10093-JTM)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Jose Cipriano Mendias-Chavez appeals his sentence after


      *
          This order and judgment is not binding precedent except under the doctrines of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.
pleading guilty to illegal re-entry into the United States after deportation in

violation of 8 U.S.C. § 1326 (a) and (b)(2). The district court sentenced Mr.

Mendias-Chavez to sixty months in prison. The district court’s sentencing

calculation included a sixteen-level enhancement for Mr. Mendias-Chavez’s prior

conviction of an aggravated felony. See 8 U.S.C. § 1326(b)(2); United States

Sentencing Guidelines Manual § 2L1.2(b)(1)(A). We have jurisdiction pursuant

to 28 U.S.C. § 1291 and affirm.



      On appeal, Mr. Mendias-Chavez argues his sentence is unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466 (2000) because the indictment did

not charge him with the prior aggravated felony offense. In so doing, Mr.

Mendias-Chavez acknowledges the United States Supreme Court has squarely

rejected his position in Almendarez-Torres v. United States, 523 U.S. 224 (1998),

as has this court in United States v. Martinez-Villalva, 232 F.3d 1329 (10th Cir.

2000). Nevertheless, Mr. Mendias-Chavez states he is raising an Apprendi

argument to preserve it for further review before the Supreme Court.



      We review the district court’s application and interpretation of the United

States Sentencing Guidelines de novo. See Martinez-Villalva, 232 F.3d at 1332.

As Mr. Mendias-Chavez notes, the issue in this case is identical to that previously


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analyzed and decided by the Supreme Court in Almendarez-Torres, and this

circuit in Martinez. For judicial economy, we will not repeat the same analysis

here, other than to conclude that the district court’s imposition of a sixteen-level

enhancement based on Mr. Mendias-Chavez’s prior aggravated felony conviction

does not violate Apprendi.



      Accordingly, we AFFIRM Mr. Mendias-Chavez’s sentence.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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