F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 25 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-4235
(D.C. No. 2:01-CR-53-W)
JUAN CARLOS GARCIA- (D. Utah)
CASTILLO, also known as
Juan Sarneinto Garcia, Juan Carlos,
Juan Garcia, Juan Carlos Sarmiento,
Carlos Sarmiento-Garcia, Juan Carlos
Sarniento, Carlos Sarniento-Garcia
Sarniento, Carlos Sarniento-Garcia,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, ANDERSON , 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
*
This order and judgment is not binding precedent, except under the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(G). The case is therefore
ordered submitted without oral argument.
Defendant-appellant Juan Carlos Garcia-Castillo was indicted for and
pleaded guilty to one count of illegal reentry following deportation, in violation
of 8 U.S.C. § 1326. The maximum penalty under 8 U.S.C. § 1326(a) is two years
in prison. However, subsection (b) of the statute increases the maximum penalty
to twenty years in prison if the defendant committed an aggravated felony before
deportation. See id. § 1326(b)(2). At his plea hearing, Mr. Garcia-Castillo
admitted that he had been convicted in 1998 for second degree robbery, an
aggravated felony under 8 U.S.C. § 1101(a)(43).
The district court sentenced Mr. Garcia-Castillo to seventy-seven months in
prison to run concurrently with his Utah state sentence, to be followed by three
years of supervised release. This sentence included an enhancement based on
Mr. Garcia-Castillo’s prior aggravated felony conviction.
Mr. Garcia-Castillo’s sole issue on appeal is that the district court
committed jurisdictional error when it sentenced him to a term of imprisonment
that exceeds the maximum penalty for the offense of conviction. He argues that
because the existence of his prior aggravated felony was not included in the
indictment, a sentence of more than two years violates the United States Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
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In Apprendi the Court 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 490 (emphasis added). As Mr. Garcia-Castillo acknowledges, and as the
language quoted above makes clear, the Apprendi rule is subject to an explicit
exception made necessary by the Court’s earlier decision in Almendarez-Torres v.
United States, 523 U.S. 224 (1998). See Apprendi, 530 U.S. at 487-90.
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 that must be proved to a jury beyond a reasonable doubt.
Id. at 235. As a consequence, the twenty-year prison term set forth in 8 U.S.C.
§ 1326(b)(2) may apply even where the indictment failed to allege that the
defendant had a prior aggravated felony conviction. Almendarez-Torres, 523 U.S.
at 226-27, 235.
Apprendi specifically refused to overrule the earlier Almendarez-Torres.
See Apprendi, 530 U.S. at 489-90 (stating “[e]ven though it is arguable that
Almendarez-Torres was incorrectly decided . . . we need not revisit it for purposes
of our decision today to treat the case as a narrow exception to the general rule
we recalled at the outset”). This court is also bound by its own decisions since
Apprendi rejecting the argument that Mr. Garcia-Castillo makes here. 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), cert. denied, 532 U.S. 986
(2001). As we have said before, one panel of this court cannot overrule
a decision of another panel. United States v. Hargus, 128 F.3d 1358, 1364
(10th Cir. 1997).
Mr. Garcia-Castillo states that he brings this appeal to preserve the issue
for further review by the Supreme Court. He has done so. It remains our duty,
however, to decide his case under the rule announced in Almendarez-Torres.
The judgment of the United States District Court for the District of Utah is
AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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