F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 24 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4067
(D.C. No. 00-CR-619-B)
MANUEL ALCALA-RODRIGUEZ, (D. Utah)
also known as Raymundo Sanchez-
Villadares,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.
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This order and judgment is not binding precedent, except under the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 Manuel Alcala-Rodriguez pleaded guilty to illegal reentry
following deportation, in violation of 8 U.S.C. § 1326(a). Violation of this
statute carries a maximum prison sentence of two years, but § 1326(b)(2) provides
enhanced prison terms of up to twenty years for those who reenter the country
illegally and have a previous aggravated felony conviction. In a written statement
made in advance of his plea, defendant admitted prior felony convictions. Under
the enhancement provisions of § 1326(b)(2), and after adjusting for acceptance of
responsibility and taking into account defendant’s criminal history, the district
court sentenced him to forty-one months’ imprisonment, followed by a term of
supervised release.
On appeal, defendant relies on Apprendi v. New Jersey , 530 U.S. 466
(2000), to argue that his sentence exceeds the maximum penalty for the offense
because the fact of his prior conviction was not submitted to a jury or proved
beyond a reasonable doubt. Apprendi , however, acknowledged that a narrow
exception to this general rule, established in Almendarez-Torres v. United States ,
523 U.S. 224 (1998), applies when the fact used to enhance the sentence is a prior
conviction. Apprendi , 530 U.S. at 490. Relying on Almendarez-Torres , this court
has held that an indictment which does not contain a separate charge for prior
conviction of an aggravated felony does not violate constitutional rights. United
-2-
States v. Martinez-Villalva , 232 F.3d 1329, 1332 (10th Cir. 2000). We are bound
by Almendarez-Torres and therefore reject appellant’s arguments.
Defendant concedes that relief from this court is foreclosed by
Almendarez-Torres and this court’s decisions in Martinez-Villalva and United
States v. Dorris , 236 F.3d 582 (10th Cir. 2000), cert. denied , 121 S. Ct. 1635
(2001), but seeks to preserve his argument for review by the Supreme Court in the
event that Almendarez-Torres is overruled. He has done so. “Nevertheless,
Almendarez-Torres has not been overruled and directly controls our decision in
this case.” Dorris , 236 F.3d at 587. Accordingly, the sentence imposed by
the United States District Court for the District of Utah is AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
-3-