* This order and judgment is not binding precedent, e xcept under the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

### SEP 4 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RAFAEL PEREZ-AGUIRRE, also known as Bardomiano Perez-Macedo, Defendant-Appellant. No. 00-8053 (District of Wyoming) (D.C. No. 00-CR-46-01-D)

ORDER AND JUDGMENT *

Before MURPHY , PORFILIO , Circuit Judges, and BRORBY , Senior Circuit Judge.

I. INTRODUCTION Defendant-appellant Rafael Perez-Aguirre entered a guilty plea to illegally reentering the United States following deportation and prior conviction for an aggravated felony in violation of 8 U.S.C. §§ 1326( a)(2) and 1326(b)(2). The-2-

district court sentenced Perez-Aguirre to seventy m onths imprisonment. On appeal, Perez-Aguirre challenges the district court ’s refusal to depart from the sentencing guidelines and the enhancement of his se ntence based on a prior aggravated felony conviction that was not charged i n the indictment. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this cou rt affirms the district court as to the sentence enhancement issue but lacks the aut hority to exercise jurisdiction as to the departure issue.
II. BACKGROUND Perez-Aguirre was stopped for speeding near Powell, Wyoming. During the course of the traffic stop, the patrolman conducteda consensual search of the vehicle and discovered a fraudulent Social Securitycard and a fraudulent alien registration card. Perez-Aguirre was arrested and identified as a previously deported alien who had been convicted of a controll ed substance felony. The records revealed that Perez-Aguirre had not receive d permission by the Attorney General to reenter the United States. Perez-Aguirre was indicted for (1) illegally reente ring the United States following deportation and prior conviction for an a ggravated felony, (2) knowingly and willfully using a fraudulent alien re gistration card, and (3) knowingly and falsely, with intent to deceive, usin g a social security account number not assigned to him. Perez-Aguirre pleaded guilty to the first charge, and-3-

the government dismissed the other two counts in th e indictment. At the sentencing hearing, Perez-Aguirre requested a downw ard departure from the sentencing guidelines, which the district court ref used to grant. Perez-Aguirre was sentenced to seventy months imprisonment.
III. DISCUSSION On appeal, Perez-Aguirre challenges the district co urt’s refusal to grant a downward departure from the sentencing guidelines. He claims the district court refused to recognize its authority and responsibili ty to grant the departure, which he requested in light of his rehabilitation, familysituation, community involvement, and employment history. This court may exercise jurisdiction to review a sentencing court’s refusal to depart from the sentencing guidelines only when “the district court states that it does not have any authority to depart from the sentencing guideline range for the entire class of circumstances proffered by the defendant.” United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998). During the sentencing hearing, the district court i n this case heard arguments from Perez-Aguirre and the government reg arding the defendant’s request for a downward departure. The transcript o f the hearing clearly demonstrates that the sentencing court considered P erez-Aguirre’s circumstances but ultimately determined that there was nothing ab out the defendant “that takes him outside the heartland of cases in any respect.” There is nothing in the record-4-

to support Perez-Aguirre’s assertion that the distr ict court misunderstood its authority to depart from the sentencing guidelines. Thus, this court has no jurisdiction to review Perez-Aguirre’s departure cl aim. Perez-Aguirre also alleges his constitutional right s were violated because his sentence was enhanced under 8 U.S.C. § 1326(b)( 2) due to a prior aggravated felony conviction that was not included as an eleme nt of the charged crime in the indictment. Perez-Aguirre further asserts the district court should have advised him that he was entitled to a jury determination on the element of his prior conviction. In Almendarez-Torres v. United States , the Supreme Court held that the increased punishment for a prior deportation af ter commission of an aggravated felony under 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate element of the charged offense which must be included in the indictment and for which there must be a jury determination. See 523 U.S. 224, 230-35 (1998); see also United States v. Martinez-Villalva , 232 F.3d 1329, 1331-32 (10th Cir. 2000) (holding that Supreme Court’s decision i n Almendarez-Torres was unaffected by the Supreme Court’s later decision in Apprendi v. New Jersey , 530 U.S. 466 (2000)). Thus, Perez-Aguirre’s claim is w ithout merit.
IV. CONCLUSION For the foregoing reasons, this court may not exerc ise jurisdiction to review the district court’s refusal to depart from the sentencing guidelines. With respect-5-

to the sentence enhancement at issue, this court AFFIRMS the district court.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge