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

unanimously to honor 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. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### March 27, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 05-4150

v. (D. Utah) DAVID RAMIREZ-MARIN, also known as Navor Ramirez-Garcia,

Defendant - Appellant. (D.C. No. 2:05-CR-93-DS)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, HARTZ , and TYMKOVICH , Circuit Judges.
David Ramirez-Marin was indicted on February 16, 20 05, on one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. That same day the government filed a notice that it would seek a sentencing enhancement for a prior aggravated-felony conviction under 8 U.S.C. § 1326(b)(2), which would-2-

increase the maximum sentence from two to 20 years. On March 8, 2005, Mr. Ramirez-Marin pleaded guilty in accordance witha plea agreement that required the government to recommend that he be giv en “the appropriate reduction” for acceptance of responsibility under U .S.S.G. § 3E1.1. R. Vol. I, Doc. 11, at 4. The presentence report (PSR) statedthat he had been previously deported after a conviction for distribution of a c ontrolled substance and accordingly recommended a 16-level increase in the base offense level under U.S.S.G. § 2L1.2(b)(1)(A). It also recommended a three-level downward adjustment for acceptance of responsibility and cal culated a criminal-history category of VI, leading to a guidelines range of 77 to 96 months. Mr. RamirezMarin did not object to the facts alleged in the PS R. On May 31, 2005, the district court sentenced Mr. R amirez-Marin to 81 months’ imprisonment, followed by three years of supervised release. He now appeals the sentence, arguing that his prior aggrav ated-felony conviction should have been alleged in the indictment and proved to t he jury beyond a reasonable doubt. We have jurisdiction under 18 U.S.C. § 3742 (a) and 28 U.S.C. § 1291, and affirm. Section § 1326 provides, in relevant part:

Reentry of removed aliens (a) In general-3- Subject to subsection (b) of this section, any alie n who— (1) has been denied admission, excluded, deported, o r removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time fo und in, the United States . . . shall be fined under Title 18, or imprisoned not mo re than 2 years or both. (b) Criminal penalties for reentry of certain remo ved aliens Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection—

. . . (2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shal l be fined under such Title, imprisoned not more than 20 years, or both;

. . . . Mr. Ramirez-Marin raises for the first time on appe al a challenge to the failure of the indictment to allege the prior conviction that authorizes a sentence up to 20 years under § 1326(b). He contends that the absenc e of that allegation in the indictment means that he was charged only with a vi olation of § 1326(a) and cannot be sentenced to more than two years’ impriso nment. As a result, he-4-

argues, the district court lacked jurisdiction to s entence him under § 1326(b) and, in the alternative, committed plain error by doing so. As Mr. Ramirez-Marin acknowledges, however, his contentions are barred by controlling precedent. In Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998), the Supreme Court held that § 1326(b)(2 ) merely creates a sentencing factor that need not be alleged in the indictment. That holding was questioned but left intact by the Supreme Court’s decision in Apprendi v. New Jersey , 530 U.S. 466, 489-90 (2000). Believing that Almendarez-Torres was incorrectly decided and should be overruled, Mr. Ramirez-Marin raises the issue to preserve it for Supreme Court review. In the meantime, howe ver, we are bound by Supreme Court precedent. 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.” (internal quotation marks omitted)). Accordingly, we AFFIRM the sentence imposed by the district court. ENTERED FOR THE COURT

Harris L Hartz Circuit Judge