* This order and judgment is not binding precedent, e xcept under the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 judgments; 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 8 2002 

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

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. CARLOS GUERRERO-CORREA, also known as Roberto Rojas-Flores,

Defendant - Appellant. No. 01-4162 (D.C. No. 00-CR-616-B) (D. Utah)

ORDER AND JUDGMENT *

Before PORFILIO , ANDERSON, 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. Appellant was indicted for and pleaded guilty to on e count of illegal reentry into the United States after deportation in violati on of 8 U.S.C. § 1326. The1 Counsel for appellant filed a brief pursuant to Anders v. California ,

386 U.S. 738 (1967), and appellant filed a pro se response, in which he requests appointment of new counsel and an extension of time within which he may find new counsel. -2- maximum sentence penalty under the statute is two y ears’ imprisonment. Subsection (b) of the statute increases the maximumpossible penalty to twenty years’ imprisonment if the defendant was convicted of an aggravated felony before deportation. See 8 U.S.C. § 1326(b). The district court sentenced appellant to eighty-four months’ imprisonment follo wed by three years of supervised release. This sentence included an enhancement based on a prior aggravated felony conviction. On appeal, appellant 1 argues the maximum prison term to which he is subject is two years. He argues this limit is cons istent with the maximum penalty contained in § 1326(a), which was the offense alleg ed in the indictment and the offense to which he pleaded guilty. His argument r ests on the United States Supreme Court’s decision in Apprendi v. New Jersey , 530 U.S. 466 (2000).
In Apprendi , the Court held “ [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 appellant acknowledges , and as the language-3-

quoted above makes clear, the Apprendi rule is subject to an explicit exception for prior convictions. Appellant states he brings his appeal in part to pr eserve an argument for the Supreme Court. He has done so. At this time, however, appellant’s argument based on Apprendi is without merit. In his pro se notice of appeal, appellant asserts several additio nal arguments. First, he argues he received ineffectiv e assistance of trial counsel. Ineffective assistance of counsel claims should be brought in collateral proceedings rather than on direct appeal. See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). Second, appellant argues the district court subject ed him to double punishment in violation of the United States Constitution by imposing a sentence for the instant offense based on his prior aggravat ed felony conviction, for which he already served four years in prison. However, the sentencing guidelines require a judge to consider a prior conviction whencalculating an offense level and a criminal history category. See United States v. Florentino , 922 F.2d 1443, 1447 (10th Cir. 1990). Third, appellant argues the current form of 8 U.S.C . § 1326 was enacted after his deportation in 1985, and therefore, he cannot be punished for re-entry after deportation. However, the event for which ap pellant was sentenced was his-4-

re-entry, not his deportation, and his re-entry occ urred after enactment of the current form of § 1326. The judgment of the United States District Court fo r the District of Utah is AFFIRMED. Appellant’s pro se requests for an extension of time and for appointment of counsel are DENIED. Entered for the Court

John C. Porfilio Circuit Judge