* This order and judgment is not binding precedent, except under the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

Appellant was indicted for and pleaded guilty to one count of illegal reentry

into the United States after deportation in violation of 8 U.S.C. § 1326. The
1 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.

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maximum sentence penalty under the statute is two years’ imprisonment. 

Subsection (b) of the statute increases the maximum possible 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 followed 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 consistent with the maximum penalty

contained in § 1326(a), which was the offense alleged in the indictment and the

offense to which he pleaded guilty. His argument rests 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 beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 

Id. at 490 (emphasis added). As appellant acknowledges, and as the language
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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 preserve 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 additional

arguments. First, he argues he received ineffective 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 subjected him to double

punishment in violation of the United States Constitution by imposing a sentence

for the instant offense based on his prior aggravated felony conviction, for which

he already served four years in prison. However, the sentencing guidelines

require a judge to consider a prior conviction when calculating 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 appellant was sentenced was his
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re-entry, not his deportation, and his re-entry occurred after enactment of the

current form of § 1326.

The judgment of the United States District Court for 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