* This order and judgment is not binding precedent, e xcept under the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

### MAY 14 2003 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MARTIN VALTIERRA-ROJAS,

Defendant-Appellant. No. 02-3356 (D.C. No. 02-CR-10037-WEB)

(D. Kan.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, PORFILIO and BALDOCK , Circuit Judges.

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); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Defendant Martin Valtierra-Rojas pleaded guilty to one count of illegal reentry by an alien deported after a conviction of an aggravated felony in2--

violation of 8 U.S.C. § 1326(a) and (b)(2). The di strict court concluded a sixteen-level enhancement was appropriate based on defendant’s two prior convictions of aggravated assault, see USSG § 2L1.2(b)(1)(A)(ii), and sentenced him to sixty-three months of imprisonment. On appeal, defendant argues that the district courterred by increasing his base offense level based on elements, i.e., prior c onvictions of aggravated assault, that were not charged in the superseding indictmentand not proven beyond a reasonable doubt. He asserts that he pleaded guilty to illegal reentry after a conviction of an aggravated felony, and thus, the d istrict court should have enhanced his base offense level by only eight, rath er than sixteen, pursuant to USSG § 2L1.2(b)(1)(C). Defendant bases his argument on Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), in which the Court held that facts usedto enhance the penalty for a crime beyond the statutory maximum must be submitte d to a jury and proven 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 488-90. Defendant concedes that reli ef from this court is foreclosed by Almendarez-Torres and this court’s decision in United States v. Martinez-Villalva , 232 F.3d 1329, 1332 (10th Cir. 2000), but seeks t o1 Even if Almendarez-Torres were overruled, defendant still would have no

claim based on Apprendi. In Apprendi, the Court held that facts used to enhance the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Apprendi , 530 U.S. at 490. In the instant case, defendant pleaded guilty to one count of ille gal reentry by an alien deported after a conviction of an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2), exposing him to a maximum prison term of tw enty years. The district court sentenced defendant to sixty-three months of imprisonment, which is well within the statutory maximum. 3-- preserve his argument for review by the Supreme Court in anticipation that Almendarez-Torres will be overruled. While we acknowledge defendant’s effort, we cannot grant him relief. We are bound by Almendarez-Torres and Martinez-Villalva

. 1 See Agostini v. Felton , 521 U.S. 203, 237 (1997) (“[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which direc tly controls, leaving to this Court the prerogative of overruling its own decisio ns.”) (quotation omitted); United States v. Hargus , 128 F.3d 1358, 1364 (10th Cir. 1997) (one panel o f this court cannot overrule a decision of another panel). The judgment of the United States District Court fo r the District of Kansas is AFFIRMED. Entered for the Court

Deanell Reece Tacha Chief Judge