* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### JUN 25 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.JUAN CARLOS GARCIACASTILLO, 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. No. 01-4235 (D.C. No. 2:01-CR-53-W) (D. Utah)

ORDER AND JUDGMENT *
Before TACHA , Chief Judge, ANDERSON , Circuit Judge, and BRORBY , Senior Circuit Judge.
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-2-

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 foll owing 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 committe d an aggravated felony before deportation. See id . § 1326(b)(2). At his plea hearing, Mr. Garcia-Ca stillo admitted that he had been convicted in 1998 for sec ond 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 sent ence, to be followed by three years of supervised release. This sentence include d an enhancement based on Mr. Garcia-Castillo’s prior aggravated felony convi ction. Mr. Garcia-Castillo’s sole issue on appeal is that the district court committed jurisdictional error when it sentenced hi m 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).-3-

In Apprendi the Court held that “ [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime bey ond the prescribed statutory maximum must be submitted to a jury, and proved bey ond a reasonable doubt.” Id. at 490 (emphasis added). As Mr. Garcia-Castillo a cknowledges, and as the language quoted above makes clear, the Apprendirule is subject to an explicit exception made necessary by the Court’s earlier dec ision 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 sentenc ing 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 t erm set forth in 8 U.S.C. § 1326(b)(2) may apply even where the indictment fa iled to allege that the defendant had a prior aggravated felony conviction. Almendarez-Torres, 523 U.S. at 226-27, 235. Apprendispecifically 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 i t 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 bo und by its own decisions since Apprendirejecting the argument that Mr. Garcia-Castillo ma kes here. See United-4-

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 appe al to preserve the issue for further review by the Supreme Court. He has do ne so. It remains our duty, however, to decide his case under the rule announce d in Almendarez-Torres. The judgment of the United States District Court fo r the District of Utah is AFFIRMED.
Entered for the Court
Wade Brorby Senior Circuit Judge