* The case is unanimously ordered submitted withoutoral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The Court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment 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 30 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v.JOSE RAMON GUAJARDOHERNANDEZ, Defendant - Appellant. No. 00-3357 (D.C. No. 00-10050-01-MLB) (D. Kansas.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges. Defendant Guajardo-Hernandez pleaded guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)( 2). His sentence of fifty-seven months imprisonment included an enhancement because defendant had previously been deported for an aggravated felony conviction. See 8 U.S.C. § 1326(b)(2); U.S.S.G. § 2L1.2(b)(1)(A). Defendant objected to the presentence report, arguing- 2 -

his sentence should not have exceeded the two-year maximum prison term for mere unlawful reentry by an alien because his priordeportation for an aggravated felony conviction was not charged in the indictment . His objection was overruled, and on appeal he challenges the use of asentence enhancement based on that factor, arguing that his resulting sentence is unconstitutional under Apprendi v. New Jersey , 530 U.S. 466 (2000). In Apprendi , the Supreme Court held that “[o]ther than the fac t of a prior conviction, any fact that increases the penalty fora crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Defendant acknowledges that his argument runs count er to recent decisions of this Court. In United States v. Martinez-Villal va , 232 F.3d 1329 (10th Cir. 2000), we rejected a nearly identical post-Apprendi claim as foreclosed by the Supreme Court’s holding in Almandarez-Torres v. Uni ted States , 523 U.S. 224 (1998). [An] exception was carved out of the Apprendi holding to account for the Court’s holding in Almandarez-Torres []. . . . Almendarez-Torres held that 8 U.S.C. § 1326(b)(2), which mandates an increased sentence for violation of § 1 326(a) if the previous deportation was after commission of an agg ravated felony, was not a separate element of the offense that mustbe proved to a jury beyond a reasonable doubt, but was, instead, m erely a sentencing factor based on recidivism. We are bound by that c ase to hold that the fact of defendant’s prior felony conviction is not an element of the offense with which he was charged by indictment , but is, instead,- 3 -

a sentencing factor. Consequently, the indictment in this case, which did not separately charge defendant with a prior ag gravated felony conviction, did not violate defendant’s constitutio nal rights. Martinez-Villalva , 232 F.3d at 1331–32 (citations omitted). Like th at case, defendant’s sentence “falls squarely within the exc eption to the Apprendi holding and is governed by Almendarez-Torres .” Id. at 1331; see also United States v. Dorris , 236 F.3d 582, 587 (10th Cir. 2000) (reaffirming t hat Almendarez-Torres is not overruled by Apprendi ), cert. denied , 121 S. Ct. 1635 (2001) . We reject defendant’s argument that “[b]ecause the Apprendi decision casts a pall over the validity of Almendarez-Torres , . . . this Court can and should vacate Guajardo’s sentence.” (Appellant’s Br. at 7 .) Contrary to defendant’s assertion that “stare decisis does not bar this Court from ruling contrary to th e holding in Almendarez-Torres ,” we are bound both by the Supreme Court’s holding in Almendarez-Torres and by this Court’s recognition that “[t]he Apprendi Court specifically declined to revisit or overrule Almendarez-Torres .” Martinez-Villalva , 232 F.3d at 1331. In light of that precedent, de fendant’s indictment and sentence did not violate his constit utional rights. Defendant brings this appeal in part to preserve hi s argument for review by the Supreme Court. With the acknowledgment that he has done so, we AFFIRM defendant’s sentence. The mandate shall issue forthwith.- 4 - ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge