F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 16 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6408
(D.C. No. CR-00-90-M)
JUAN CARLOS TAPIA, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON , and MURPHY , 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This order and judgment is not binding precedent, except under the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.
Juan Carlos Tapia appeals from a final judgment in his criminal case. He
was convicted of one count of being found in the United States after being
deported without the permission and consent of the Attorney General. See 8
U.S.C. § 1326(a). He received a sentence of forty-six months’ imprisonment,
followed by two years’ supervised release.
Violation of § 1326(a) carries a maximum penalty of not more than two
years in prison. Where, however, the defendant’s removal was subsequent to a
conviction of an aggravated felony, the maximum penalty increases to twenty
years. See 8 U.S.C. § 1326(b)(2). The district court applied a 16-level sentencing
enhancement pursuant to USSG § 2L1.2(b)(1)(A) because it found that Tapia had
a prior conviction for illegal possession of a firearm, an aggravated felony
pursuant to 8 U.S.C. § 1101(a)(43).
Tapia contends, relying on Apprendi v. New Jersey , 530 U.S. 466 (2000),
that the prior aggravated felony should have been alleged in the indictment and
pleaded and proved beyond a reasonable doubt. He essentially concedes that this
argument is foreclosed if Almendarez-Torres v. United States , 523 U.S. 224,
226-27 (1998), remains good law. Tapia argues, however, that Apprendi has
implicitly overruled Almendarez-Torres .
We have previously rejected this contention. “The Apprendi Court
specifically declined to revisit or overrule Almendarez-Torres .” United States v.
-2-
Martinez-Villalva , 232 F.3d 1329, 1331 (10th Cir. 2000). Instead, in Apprendi ,
the Supreme Court specifically carved out an exception for the rule of
Almendarez-Torres , by holding that the fact of a prior conviction need not be
submitted to a jury and proved beyond a reasonable doubt. Id. at 1332. 1
Almendarez-Torres applies here, and the district court therefore did not err by
applying the prior aggravated felony enhancement.
For the foregoing reasons, the judgment of the United States District Court
for the Western District of Oklahoma is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
1
In addition, under Apprendi and Almendarez-Torres , the fact of the prior
conviction need not be included in the indictment. See United States v. Wilson ,
244 F.3d 1208, 1216 (10th Cir. 2001), cert. denied , 2001 WL 606873
(U.S. June 29, 2001) (No. 00-10289).
-3-