* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### OCT 17 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. EWING HIRATA VISE, Defendant-Appellant. No. 01-6028 (Western District of Oklahoma) (D.C. No. 98-CR-81-M)

ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

I. INTRODUCTION Appellant Ewing Hirata Vise pleaded guilty to drug and firearm charges. Vise challenges his sentencing under the United States Sentencing Guidelines on the ground that Apprendi v. New Jerseyrequires all facts relevant to sentencing under the guidelines be submitted to a jury and pro ved beyond a reasonable doubt.-2-

Because a panel of this court has already rejected the applicability of Apprendito the Sentencing Guidelines, we affirm the sentence. II. FACTS Ewing Hirata Vise pleaded guilty to manufacturing m ethamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). On the drug count, he was given a life sentence under the mandatory sentencing prov isions of 21 U.S.C. § 841(b), in part based on the quantity of drugs involved in prior drug convictions. Mr. Vise received a concurrent ten year sentence on the firearm count. Vise appealed the sentence. During the pendency of the appeal, this court decided in United States v. Santos that the mandatory sentencing provisions of 21 U.S.C. § 841(b) apply only by consideration of the drug amount for the current conviction, not “relevant conduct” drug quantities. 195 F.3d 549 (10th Cir. 1999). Vise’s drug sentence was vacated and the case reman ded to the district court for resentencing. United States v. Vise , 211 F.3d 1279, 2000 WL 485174 (10th Cir. 2000) (unpublished). Just after remand, the United States Supreme Court issued its opinion in Apprendi v. New Jersey , 120 S.Ct. 2348 (2000). Apprendi held that “any fact which increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” 120 S.Ct.-3-

at 2362. The district court ordered briefing on th e impact of Apprendion Vise’s sentencing. Vise did not provide the district court with briefing. The district court resentenced Vise. The guideline sentence range was 155- 188 months. Vise received 188 months in prison and 6 years supervised release on the drug charge. Vise contends that Apprendirequires that any factor which increases his guideline sentence range be alleged in the indictme nt, submitted to the jury, and proved beyond a reasonable doubt. III. DISCUSSION Vise did not present this argument to the district court. Normally, failing to make below a specific objection to sentencing precl udes appellate review. United States v. Gilkey , 118 F.3d 702, 704 (10th Cir. 1997). Because, how ever, the applicability of Apprendito the sentencing guidelines is “‘a legal question involving application’” of the guidelines, we revie w the sentence for plain error. Id. (quoting United States v. Ciaponi , 77 F.3d 1247, 1252 (10th Cir. 1996)). In United States v. Sullivan , this court held that Apprendi “does not apply to sentencing factors that increase a defendant’s g uideline range but do not increase the statutory maximum.” 255 F.3d 1256, 126 5 (10th Cir. 2001). Vise concedes that Sullivan is dispositive, but wishes to raise the question of the applicability of Apprendito preserve the issue for appeal to the United Sta tes-4-

Supreme Court. This panel can not overrule circuit precedent. Berry v. Stevinson Chevrolet , 74 F.3d 980, 985 (10th Cir. 1996). Accordingly, the sentence was not in error. The sentence imposed by the United States District Court for the Western District of Oklahoma is AFFIRMED. ENTERED FOR THE COURT
Michael R. Murphy Circuit Judge