FILED
United States Court of Appeals
Tenth Circuit
OCT 10 2001
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4015
(D.C. No. 00-CR-373-K)
AARON ALANIZ-RIVERA, (D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT(1)
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.
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.
(1) This order and judgment is not binding precedent, except under the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.
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Defendant Aaron Alaniz-Rivera pleaded guilty to illegal reentry following
deportation, in violation of 8 U.S.C. . 1326(a). Violation of this statute carries
a maximum prison sentence of two years, but . 1326(b)(2) provides enhanced
prison terms of up to twenty years for those who reenter the country illegally and
have a previous aggravated felony conviction. In a written statement made in
advance of his plea, defendant admitted a prior conviction for burglary. Under
the enhancement provisions of . 1326(b)(2), the district court sentenced him to
seventy-seven months' imprisonment, followed by a term of supervised release.
On appeal, defendant relies on Apprendi v. New Jersey, 530 U.S. 466
(2000), to argue that his sentence violates due process because the fact of his
prior conviction was not contained in the indictment and not submitted to a jury
or proved beyond a reasonable doubt. Apprendi, however, acknowledged that
a narrow exception to this general rule, established in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), applies when the fact used to enhance the
sentence is a prior conviction. Apprendi, 530 U.S. at 490. Relying on
Almendarez-Torres, this court has held that an indictment which does not contain
a separate charge for prior conviction of an aggravated felony does not violate
constitutional rights. United States v. Martinez-Villalva, 232 F.3d 1329, 1332
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(10th Cir. 2000). We are bound by Almendarez-Torres, and therefore reject
appellant's arguments.(1)
Defendant's counsel, in a separate brief filed pursuant to Anders v.
California, 386 U.S. 738 (1967), concedes that relief from this court is foreclosed
by Almendarez-Torres and this court's decisions in Martinez-Villalva and United
States v. Dorris, 236 F.3d 582 (10th Cir. 2000), cert. denied, 121 S. Ct. 1635
(2001), but seeks to preserve appellant's argument for review by the Supreme
Court in the event that Almendarez-Torres is overruled. He has done so.
"Nevertheless, Almendarez-Torres has not been overruled and directly controls
our decision in this case." Dorris, 236 F.3d at 587. Accordingly, the sentence
imposed by the district court is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
(1) Appellant also contends that some of the convictions listed on the
PreSentence Report are not his and that his counsel was aware of the problem
butdid nothing to correct the record. Appellant's Br. at 1. More specifically,
appellant states that a conviction dated February 18, 1991, is listed in error.
However, this is not the conviction on which defendant's enhancement under
1326(b) was based and appellant's challenge to it therefore does not implicate
his sentence.
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