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                           United States Court of Appeals
                                    Tenth Circuit
                                     JUL 31 2001
                                   PATRICK FISHER
                                   TENTH CIRCUIT
         UNITED STATES OF AMERICA,        
         Plaintiff-Appellee,                         No. 01-4000

              v.                        (D. Utah)

         CARLOS                                (D.C. No. 00-CR-243-J)     
         also known as                               
         Carlos Garcia-Sierra,                   
         Before HENRY, BRISCOE, and MURPHY, Circuit Judges.         

              After examining the briefs and appellate record, this panel has determined 

         unanimously to honor the parties' request for decision on the briefs without oral 

         argument.  See Fed. R. App. P. 34(f).  The case is therefore 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         (1)       This order and judgment is not binding precedent, except under the 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.
              Mr. Ojeda-Sierra pleaded guilty to one count of illegal reentry following 

         deportation in violation of 8 U.S.C. . 1326(a).  He was sentenced to fifty-seven 

         months' imprisonment, followed by thirty-six months' supervised release.  The 

         district court increased Mr. Ojeda-Sierra's base offense level by sixteen points 

         pursuant to USSG . 2L1.2(b)(1)(A) because of his prior conviction for an 

         aggravated felony.  Mr. Ojeda-Sierra objected to the sixteen-level enhancement 

         for having previously sustained an aggravated felony.  We have jurisdiction 

         pursuant to 28 U.S.C. . 1291 and 18 U.S.C. . 3742(a), and we affirm.

              The basis for Mr. Ojeda-Sierra's argument is Apprendi v. New Jersey, 530 

         U.S. 466, 490 (2000).  There the Supreme Court held that facts used to enhance 

         the penalty for a crime beyond the statutory maximum must be submitted to a jury 

         and proved beyond a reasonable doubt.  Specifically he argues that, because he 

         was neither charged with, nor pleaded guilty to, the prior felony conviction, the 

         sentencing court erred in relying on the prior conviction to enhance his sentence 

         under 28 U.S.C. . 1326(b)(2). 

              Mr. Ojeda-Sierra concedes that his argument is foreclosed for the time 

         being by Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), see 

         Aplt's Br. at 3-4, but seeks to preserve his argument for review by the Supreme 

         Court in anticipation that Almendarez-Torres will be overruled.  He has done so. 

         "Nevertheless, Almendarez-Torres has not been overruled and directly controls
         our decision in this case."  United States v.. Dorris, 236 F.3d 582, 587 (10th Cir. 

         2000), cert. denied, 121 S. Ct. 1635 (2001).

              Accordingly, we AFFIRM Mr. Ojeda-Sierra's sentence.


                                       Entered for the Court,


                                       Robert H. Henry
                                       Circuit Judge

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