F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 8 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4049
(D.C. No. 95-CR-81-W)
RICARDO RODRIGUEZ-OROZCO, (D. Utah)
aka Ricardo Rodriguez-Orosco;
aka Ricardo Rodriguez-Catalan;
aka Ricardo Rodriguez-Aguila;
aka Richard Velasquez;
aka Jose Rodriguez;
aka Ricardo Flores-Aguila,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and BRISCOE, 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
*
This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Defendant Ricardo Rodriguez-Orozco pled guilty to a charge of illegal
reentry into the United States by a deported alien following conviction of an
aggravated felony in violation of 8 U.S.C. § 1326. 1 He entered his plea pursuant
to Fed. R. Crim. P. 11(a)(2) reserving his right to appeal the court’s denial of his
motion to dismiss the indictment on double jeopardy grounds. The court
sentenced Mr. Rodriguez-Orozco to seventy-seven months’ imprisonment and
thirty-six months’ supervised release.
Mr. Rodriguez-Orozco was initially deported in 1988, after he was
convicted in state court of two counts of unlawful distribution of a controlled
substance. In 1991, he entered a guilty plea to a charge of illegal reentry after
deportation. In 1993, he was again deported. He was then found to be unlawfully
in Salt Lake City in 1994. The court denied Mr. Rodriguez-Orozco’s motion to
dismiss the indictment charging him with illegal reentry on the grounds of double
jeopardy. At sentencing on this latest illegal reentry charge, the district court
increased his offense level four levels based on the 1988 convictions.
1
Section 1326 addresses the criminal penalties to be imposed on certain
aliens who have illegally reentered the United States after deportation. Aliens,
such as Mr. Rodriguez-Orozco who was deported following his convictions for
aggravated felonies, shall be fined or imprisoned not more than 20 years, or both.
See id. § 1326(b)(2).
-2-
In his motion to dismiss, Mr. Rodriguez-Orozco argued that he could not be
charged under § 1326 because to do so would punish him again for the 1988
aggravated felony convictions and violate double jeopardy. Mr. Rodriguez-
Orozco urges us not to follow our case of United States v. Valdez, 103 F.3d 95
(10th Cir. 1996), which held that § 1326 was a sentence enhancement provision
and not a separate criminal offense, but rather to follow the Ninth Circuit’s case
of United States v. Campos-Martinez, 976 F.2d 589 (9th Cir. 1992). We decline
to do so. “We cannot overrule the judgment of another panel of this court. We
are bound by the precedent of prior panels absent en banc reconsideration or a
superseding contrary decision by the Supreme Court.” In re Smith, 10 F.3d 723,
724 (10th Cir. 1993) (citations omitted).
In Valdez, we held that 8 U.S.C. § 1326(b) was a penalty enhancement
provision. See id. 103 F.3d at 96. We specifically declined to follow
Campos-Martinez. See id.; see also United States v. Valenzuela-Escalante,
No. 96-4147, 1997 WL 751586, at *4 (10th Cir. Dec. 5, 1997). Because
§ 1326(b) is an enhancement provision, double jeopardy concerns are not
implicated. Cf. United States v. Hawley, 93 F.3d 682, 688 (10th Cir. 1996)
(two-level enhancement for failure to appear is not punishment for purposes of
double jeopardy).
Recidivist sentencing has been part of the criminal
justice system since the founding of the nation, and it
-3-
has been sustained against all manner of double jeopardy
claims. The essential point is simple: a sentence
enhanced by reference to a prior conviction is not a
“second punishment” for the first crime. It is a
punishment for the new crime, tailored to the offender’s
circumstances in light of knowledge that higher
penalties are needed to deter persons who have not
responded to lesser sanctions. [Defendant]’s
observation that the sentence depends in part on the
evidence that led to his prior conviction is irrelevant . . .
.
United States v. Shaw, 26 F.3d 700, 701 (7th Cir. 1994) (citations omitted).
The judgment of the United States District Court for the District of Utah
is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
-4-