* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 11 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE LUIS CHAVEZ-VARGAS, Defendant-Appellant. No. 01-4040 (D.C. No. 00-CR-370-C) (D. Utah)

ORDER AND JUDGMENT *

Before EBEL, KELLY, and LUCERO , Circuit Judges.
Jose Chavez-Vargas was convicted of illegal reentryfollowing deportation in violation of 8 U.S.C. §1326(a). A conviction on this charge typically carries a maximum sentence of two years. However, when the r eason for the original deportation was the commission of an aggravated fel ony, the maximum sentence is raised to twenty years. See 8 U.S.C. §1326 (b).- 2 -

In this case, the district court found that the def endant had originally been deported because of an aggravated felony conviction . This prior felony conviction was not alleged in the indictment but ittriggered a sixteen level enhancement under the United States Sentencing Guid elines (“USSG”). The district court granted the defendant a two-level re duction for acceptance of responsibility pursuant to §3E1.1 (a) of the USSG. The defendant raises two issues on appeal. First, he contends that the district court erred in denying him an additional o ne-level reduction for acceptance of responsibility without making finding s as to whether he provided timely and complete information to the government c oncerning his involvement in the offense. Second, he argues that the district c ourt erred when it sentenced him to a term of imprisonment beyond the maximum penalty for his conviction, based on a prior felony conviction which was not a part o f his indictment. We remand with respect to the first issue and affirm with res pect to the second. A defendant who has received a two-level reduction for acceptance of responsibility may be entitled to an additional one -level reduction for “ timely providing complete information to the government co ncerning his own involvement in the offense.” See USSG §3E1.1(b)(1). In this case, it is clear that the district court m ade no finding as to whether this prong was satisfied, and the government conced es that the failure to do so- 3 -

was error. The district court denied the additiona l point, which it deemed “super acceptance,” because the defendant “did put the gov ernment to the burden of proof.” (Vol. II, 13). The district court’s reluct ant decision to grant the two-level reduction in the first instance is not dispositive of whether an additional point is available under the timely provision of information prong of 3E1.1(b). See United States v. Ortiz , 63 F.3d 952, 956 (10th Cir. 1995) (noting that th e two prongs of 3E1.1(b) are disjunctive, therefore comme ncement of a trial only affects 3E1.1(b)(2), and remanding for findings of whether 3E1.1(b)(1) was satisfied). Therefore, we remand to the district court to make findings of whether the defendant is eligible for an additional one-level r eduction. The defendant also argues that his prior conviction is an element of the offense, which under Apprendi v. New Jersey , 530 U.S. 466 (2000), must be charged in the indictment, presented to the jury, a nd found beyond a reasonable doubt. We disagree. In a factually identical case to this one with resp ect to this issue, this court explicitly held that failure of an indictment to ch arge a defendant separately with a prior aggravated felony conviction does not violate Apprendi . See United States v. Martinez-Villalva , 232 F.3d 1329, 1332 (10th Cir. 2000). In Martine z-Villalva , we found that the holding of Apprendi carved out an exception for prior felony convictions, and thus preserved the Court’s prior h olding in Almendarez-Torres v.- 4 -

United States , 523 U.S. 224 (1998), that a prior felony convicti on was a sentencing factor, rather than an element of the of fense. See Martinez-Villalva , 232 F.3d at 1331. Like Martinez-Villalva , this case “falls squarely within the exception to the Apprendi holding and is governed by Almendarez-Torres .” Id . at 1331. Therefore, we REMAND in part to the district court to make findings of whether the defendant is eligible for an additional one-level reduction under 3E1.1(b)(1) and AFFIRM with respect to the districtcourt’s consideration at sentencing of defendant’s prior felony conviction.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge