                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         JUN 12 2001
                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 00-3303
 v.
                                               (D.C. No. 00-20015-01-GTV)
                                                       (D. Kansas.)
 CLAYTON E. NICKENS, JR.,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, HOLLOWAY, and LUCERO, Circuit Judges.


      Defendant Clayton Nickens pleaded guilty to one count of possession of a

firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

His sentence of fifty-seven months imprisonment was based in part on a two-level

enhancement because the firearm he possessed was stolen. See U.S.S.G.

§ 2K2.1(b)(4). For the first time on appeal, defendant challenges that




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G).   This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. This 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.
enhancement, arguing the increase in his sentence is unconstitutional under

Apprendi v. New Jersey, 530 U.S. 466 (2000).

      The presentence investigation report (“PSR”) recommended a two-level

increase in defendant’s base offense level pursuant to U.S.S.G. § 2K2.1(b)(4)

because the firearm involved in his offense was stolen. Although Nickens

objected to the PSR on the separate ground that he should have been granted a

downward departure, he did not object at the district court level to the two-level

enhancement under § 2K2.1(b)(4). The government therefore asserts, and

defendant concedes, that we may review his sentence for plain error only. Fed. R.

Crim. P. 52(b). Our standard of review of the district court proceedings is

irrelevant, however, because defendant has not alleged a cognizable Apprendi

violation.

      In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490. Defendant’s sentence of fifty-seven months was below

the ten-year statutory maximum provided for by 18 U.S.C. § 924(a)(2). Because

Apprendi’s holding applies only to facts that result in a sentence in excess of the

statutory maximum for the charged offense, defendant’s sentence can not have

been unconstitutional under Apprendi. 530 U.S. at 490.


                                         -2-
      That conclusion is dictated by our recent decisions rejecting arguments

similar to defendant’s. In a recent case, a defendant argued that the district court

erred when it calculated his sentence using drug transactions of which he was not

convicted. United States v. Hishaw, 235 F.3d 565, 573–74 (10th Cir. 2000),

petition for cert. filed (U.S. Apr. 24, 2001) (No. 00-9743). Rejecting his claim,

we held that only facts that increase the penalty to which a defendant is exposed

beyond the statutory maximum must be pleaded and proved beyond a reasonable

doubt. Id. at 577. Where the sentencing court “relied on conduct outside the

offense of conviction to determine [defendant’s] sentence but nevertheless

imposed a sentence within the statutory maximum[,] . . . [t]hat practice is

authorized by established precedent and not forbidden by Apprendi.” Id.

(citations omitted).

      In United States v. Sullivan, we agreed with those circuits holding that

“Apprendi does not apply to sentencing factors that increase a defendant’s

guideline range but do not increase the statutory maximum.” 242 F.3d 1248,

1256–57 (10th Cir. 2001) (citing cases). Similarly, in United States v. Jackson,

we rejected the contention that Apprendi overrules any portion of the Sentencing

Guidelines. 240 F.3d 1245, 1249 (10th Cir. 2001), petition for cert. filed (U.S.

May 25, 2001) (No. 00-10251).




                                         -3-
      Notwithstanding defendant’s contention that “the reach of Apprendi is

greater than is given in United States v. Hishaw” (Appellant’s Br. at 9), we are

bound by prior holdings of panels of this Court, In re Smith, 10 F.3d 723, 724

(10th Cir. 1993) (per curiam).

      Defendant has appealed in part to preserve his argument in the event the

Supreme Court extends Apprendi to cover sentence enhancements within the

statutory range. With the recognition that he has done so, we AFFIRM

defendant’s sentence.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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