* This order and judgment is not binding precedent, except under the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.

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, this panel has determined

unanimously to grant the parties’ request for a decision 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 in
2--

violation of 8 U.S.C. § 1326(a) and (b)(2). The district 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 court erred by increasing his

base offense level based on elements, i.e., prior convictions of aggravated assault,

that were not charged in the superseding indictment and 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 district court should have

enhanced his base offense level by only eight, rather 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 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 , 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 relief 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 to
1 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 illegal 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 twenty years. The district

court sentenced defendant to sixty-three months of imprisonment, which is well

within the statutory maximum. 

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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 directly controls, leaving to this

Court the prerogative of overruling its own decisions.”) (quotation omitted);

United States v. Hargus , 128 F.3d 1358, 1364 (10th Cir. 1997) (one panel of this

court cannot overrule a decision of another panel).

The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

Entered for the Court

Deanell Reece Tacha

Chief Judge