F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 22 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 00-1458
(D.C. No. 00-CR-212-N)
MIGUEL CHAVES MORENO, (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO , ANDERSON , and BALDOCK , 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.
Defendant was indicted for and pleaded guilty to one count of violating
8 U.S.C. § 1326(a), which prohibits a noncitizen alien from reentering the
United States after deportation. The maximum penalty under the statute is two
*
This order and judgment is not binding precedent, except under the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.
years in prison. Subsection (b) of the statute increases the maximum possible
penalty to twenty years in prison if the defendant committed an aggravated felony
before deportation. 8 U.S.C. § 1326(b). Defendant’s indictment did not allege
a violation of § 1326(b), nor did it contain language charging that he had
previously committed an aggravated felony.
While acknowledging that application of the relevant sentencing guidelines
would result in a longer prison term, the district court nevertheless sentenced
defendant to twenty four months in prison. The court stated that it regarded this
as the maximum sentence available under the offense charged in the indictment.
It based its ruling on the United States Supreme Court’s recent decision in
Apprendi v. New Jersey , 120 S. Ct. 2348 (2000) (to be reported at 530 U.S. 466).
According to the district court, Apprendi effectively overruled an earlier
Supreme Court decision, Almendarez-Torres v. United States , 523 U.S. 224
(1998). Interpreting the very statute at issue here, Almendarez-Torres held that
the existence of a prior conviction is merely a sentencing factor, not a separate
element of the offense to which the full panoply of due process protections
attach. Id. at 235. As a consequence, said Almendarez-Torres , the twenty year
prison term set forth in 8 U.S.C. § 1326(b) may apply even where the indictment
failed to allege that the defendant had a prior aggravated felony conviction.
Id. at 227, 235.
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On appeal, the government argues that Apprendi did not overrule
Almendarez-Torres, and that the district court therefore erred in imposing a
two year sentence on defendant. The government is correct.
Apprendi 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.” Id. at 2362-
63 (emphasis added). As the language quoted above plainly states, the Apprendi
rule is subject to an explicit exception, one the Supreme Court intended to shield,
at least for the present moment, Almendarez-Torres.
Granted, as the district court noted, Apprendi expressed misgivings about
whether Almendarez-Torres was correctly decided. See Apprendi, 120 S. Ct.
at 2362 (stating “it is arguable that Almendarez-Torres was incorrectly decided”).
And as defendant observes, Justice Thomas wrote a concurring opinion in
Apprendi , in which he explicitly stated that he had erred in joining the narrow,
five-four majority in Almendarez-Torres . Id. at 2379 (Thomas, J., concurring).
But it is equally true that the Apprendi Court specifically declined to
overrule its earlier decision, treating Almendarez-Torres as “a narrow exception
to the general rule” it announced in Apprendi . Id. at 2362. Additionally, this
court has quite recently published two opinions making it unmistakably clear that
Almendarez-Torres remains binding authority within this circuit. See United
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States v. Martinez-Villalva , 232 F.3d 1329, 1332 (10th. Cir. 2000) and United
States v. Dorris , 236 F.3d 582, 587 (10th. Cir. 2000). The district court, we note,
did not have the benefit of these decisions at the time it rendered sentence.
Until and unless the Supreme Court overrules Almendarez-Torres , that
decision will continue to govern this case and others like it. This case is
REMANDED to the United States District Court for the District of Colorado with
instructions to vacate the sentence previously entered and to enter a new sentence
consistent with this decision.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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