F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 3 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4199
(D.C. No. 00-CR-332-B)
JESUS SALLAS-MORENO, (D. Utah)
also known as Jesus Arriola-Garcia,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, PORFILIO , and ANDERSON , 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This order and judgment is not binding precedent, except under the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.
Defendant appeals his sentence following a plea of guilty to one count of
illegal entry following deportation, in violation of 8 U.S.C. § 1326(a). We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
Defendant was sentenced to seventy months’ imprisonment, which included
a sixteen-level enhancement (from a base level of eight) based on his prior
conviction of an aggravated felony. See 8 U.S.C. § 1326(b)(2); USSG
§ 2L1.2(b)(1)(A). Although he submitted objections to the presentence report, he
did not object to the sixteen-level enhancement for having previously sustained an
aggravated felony. Appellant’s Br. at 3. At the sentencing hearing the district
court granted a downward departure from Category VI to Category V. Id.
On appeal, defendant argues that his sentence must be vacated because
§ 1326(b), the statute for the crime of conviction, carries a maximum sentence
of two years’ imprisonment. The basis for his argument is the Supreme Court’s
decision in Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), in which the Court
held that facts used to enhance the penalty for a crime beyond the statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt.
Specifically, he argues that because he was neither charged with, nor pleaded
guilty to, the prior felony conviction, the sentencing court erred in relying on the
prior conviction to enhance his sentence under 28 U.S.C. § 1326(b)(2).
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Defendant acknowledges, as he must, that the Supreme Court has also held
that an indictment need not allege a prior felony conviction in order for a district
court to enhance a sentence because § 1326(b)(2) creates a sentencing factor,
not a separate element of the offense. See Almendarez-Torres v. United States ,
523 U.S. 224, 235 (1998). Moreover, this court has squarely held that the
Apprendi Court did not overrule Almendarez-Torres , but rather carved out an
exception by stating 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.’” United
States v. Martinez-Villalva , 232 F.3d 1329, 1331 (10th Cir. 2000) (quoting
Apprendi , 530 U.S. at 490) (emphasis added). Like Martinez-Villalva ,
defendant’s sentence “falls squarely within the exception to the Apprendi holding
and is governed by Almendarez-Torres .” Id.
Defendant concedes that relief is foreclosed by Almendarez-Torres and this
court’s decision in Martinez-Villalva , see Appellant’s Br. at 11-12, but seeks to
preserve his argument for review by the Supreme Court in anticipation
Almendarez-Torres will be overruled. He has done so. “Nevertheless,
Almendarez-Torres has not been overruled and directly controls our decision
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in this case.” United States v. Dorris , 236 F.3d 582, 587 (10th Cir. 2000),
cert. denied , 121 S. Ct. 1635 (2001).
AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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