* This order and judgment is not binding precedent, e xcept under the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

### MAR 22 2001 

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

Plaintiff-Appellee,

v. GUSTAVO SAUCEDO CHAVEZ,

Defendant-Appellant. No. 00-1392 (D.C. No. 00-CR-171-WM) (D. Colo.)

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. Defendant was indicted for and pleaded guilty to on e count of violating 8 U.S.C. § 1326(a), which prohibits a non-citizen a lien from reentering the United-2-

States after deportation. The maximum penalty unde r the statute is two years in prison. Subsection (b) of the statute increases th e maximum possible penalty to twenty years in prison if the defendant committed an aggravated felony before deportation. 8 U.S.C. § 1326(b). Defendant’s indictment did not allege a violation of § 1326(b), nor did it contain language charging that he had previously committed an aggravated felony. The district court sentenced defendant to forty-sixmonths in prison, followed by three years of supervised release. That sentence included an enhancement because defendant had a prior aggravate d felony conviction. On appeal, defendant argues that the maximum prisonterm to which he is subject is two years. He contends this limit is consistentwith the maximum penalty contained in § 1326(a), which is both the offense a lleged in the indictment and the offense to which he pleaded guilty. His argume nt rests on the United States Supreme Court’s recent decision in Apprendi v. New Jersey , 120 S. Ct. 2348 (2000) (to be reported at 530 U.S. 466). Apprendi held that “ [o]ther than the fact of a prior conviction , any fact that increases the penalty for a crime beyond the p rescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 2362- 63 (emphasis added). As defendant acknowledges, an d as the language quoted above makes clear, the Apprendi rule is subject to an explicit exception, one the-3-

Supreme Court intended to shield its earlier decision in Almendarez-Torres v. United States , 523 U.S. 224 (1998). See Apprendi , 120 S. Ct. at 2361-62. Interpreting the very statute at issue here, Almendarez-Torres ruled that the existence of a prior conviction is merely a sentenc ing factor, not a separate element of the offense to which the full panoply of due process protections attach. Id. at 235. As a consequence, the twenty-year prison term set forth in 8 U.S.C. § 1326(b) may apply even where the indictment failed to allege that the defendant had a prior aggravated felony conviction. Id . at 226-27, 235. Despite expressing misgivings about whether Almendarez-Torres was correctly decided, Apprendi specifically refused to overrule the earlier decis ion. See Apprendi, 120 S. Ct. at 2362 (stating “[e]ven though it is arguable that Almendarez-Torres was incorrectly decided . . . we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset”). Moreover , this court has published two opinions since Apprendi stating that Almendarez-Torres remains binding authority within this circuit. See United States v. Martinez-Villalva , 232 F.3d 1329, 1332 (10th. Cir. Cir. 2000) and United States v. Dorris , 236 F.3d 582, 587 (10th. Cir. Cir. 2000). As we have said before, on e panel of this court cannot overrule a decision of another panel. United States v. Hargus , 128 F.3d 1358, 1364 (10th. Cir. Cir. 1997).-4-

Defendant informs that he brings his appeal in partto preserve an argument for the Supreme Court. He has done so. It remains our duty, however, to decide his case under the rule announced in Almendarez-Torres

. The judgment of the United States District Court for the District of Co lorado is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge