* This order and judgment is not binding precedent, e xcept under the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

### JAN 29 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. ANDRES NAVA-HERNANDEZ, Defendant-Appellant. No. 01-4136 (District of Utah) (D.C. No. 00-CR-611-K)

ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , 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 Andres Nava-Hernandez pleaded guilty to i llegal reentry following deportation, in violation of 8 U.S.C. § 1 326(a). Violation of this-2-

statute carries a maximum prison sentence of two ye ars, but § 1326(b)(2) provides for an enhanced prison term of up to twenty years f or those who reenter the country illegally and have a previous aggravated fe lony conviction. On the same day that Nava-Hernandez was indicted for violating § 1326, the United States filed a Notice of Sentencing Enhancement (the “Noti ce”). The Notice advised Nava-Hernandez that he was subject to the enhanced penalties set out in § 1326(b) based on a prior aggravated felony convicti on. In a written statement made in advance of his guilty plea, Nava-Hernandez acknowledged that the maximum term of imprisonment he was facing was twenty years. Furthermore, in calculating the appropriate sentence, the Presenten ce Report increased NavaHernandez’s offense level by sixteen points pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A) based on his prior aggravated felony. NavaHernandez did not lodge any objections to the Prese ntence Report. The district court ultimately sentenced Nava-Hernandez to a termof imprisonment of seventy months. On appeal, Nava-Hernandez relies on Apprendi v. New Jersey , 530 U.S. 466 (2000), to argue that his sentence exceeds the maxi mum penalty for the offense because the fact of his prior conviction was not su bmitted to a jury or proved beyond a reasonable doubt. Apprendi , however, acknowledged that a narrow exception to this general rule, established in Almendarez-Torres v. United States ,-3-

523 U.S. 224 (1998), applies when the fact used to enhance the sentence is a prior conviction. Apprendi , 530 U.S. at 490. Relying on Almendarez-Torres , this court has held that an indictment which does not contain a separate charge for prior conviction of an aggravated felony does not violate constitutional rights. United States v. Martinez-Villalva , 232 F.3d 1329, 1332 (10th Cir. 2000). This panel is bound by Almendarez-Torres and therefore rejects Nava-Hernandez’s arguments. Nava-Hernandez concedes that the relief he seeks is foreclosed by Almendarez-Torres and Martinez-Villalva , but seeks to preserve his argument for review by the Supreme Court in the event that Almendarez-Torres is overruled. He has done so. See McKnight v. Gen. Motors Corp. , 511 U.S. 659, 660 (1994). “Nevertheless, Almendarez-Torres has not been overruled and directly controls our decision in this case.” See United States v. Dorris , 236 F.3d 582, 587 (10th Cir. 2000). Accordingly, the sentence imposed by the United States District Court for the District of Utah is AFFIRMED
. ENTERED FOR THE COURT
Michael R. Murphy Circuit Judge