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                           United States Court of Appeals
                                    Tenth Circuit
                                       AUG 17 2001
                                     PATRICK FISHER
                                        FOR THE TENTH CIRCUIT
         UNITED STATES OF AMERICA,        
         v.                                          No. 01-2010
                                               (D.C. No. CR-00-544-LH)
         OSCAR ARROYOS-SERNA,                         (D. N.M.)
         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 appellant's 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         (1)     This order and judgment is not binding precedent, except under the 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.  
              While defendant Oscar Arroyos-Serna was in state custody on 

         a misdemeanor charge in December 1999, he admitted to a Border Patrol Agent 

         doing a jail inspection that he was a citizen and national of Mexico.  Immigration 

         record checks revealed that defendant had previously been deported from the 

         United States.  Defendant was subsequently taken into federal custody, charged 

         with reentry of a deported alien in violation of 8 U.S.C. . 1326(a)(1) and (2), and 

         convicted by a jury.  Because defendant's prior deportation was subsequent to 

         a conviction for possession of heroin, an aggravated felony under 8 U.S.C. 

         . 1101(a)(43), the maximum prison term that could be imposed under the statute 

         was increased from two years to twenty years.  See id. . 1326(b) & (b)(2).  Due to 

         defendant's criminal history, the applicable guideline range was for offense level 

         24 and criminal history category V.   The district court sentenced defendant to 92 

         months' imprisonment, at the low end of the guideline range. 

              Defendant's counsel has filed a brief pursuant to Anders v. California, 

         386 U.S. 738 (1967), and has moved for leave to withdraw as counsel.  For the 

         reasons set forth below, we grant counsel's motion to withdraw and affirm.

              Anders holds that if counsel finds a case to be wholly frivolous after 

         conscientious examination, she should so advise the court and request permission 

         to withdraw.  Id. at 744.  Counsel must also submit to the court a brief addressing 

         anything in the record that arguably supports the appeal.  Id.  The brief is served
         upon the defendant, who may "raise any points he chooses."  Id.  The court then 

         examines the proceedings and decides whether the appeal is frivolous.  Id.  If we 

         find that the appeal is frivolous, we may grant counsel's request to withdraw.  Id. 

         Defendant was provided with a copy of counsel's brief but has not filed a 

         response with this court.

              In her Anders brief, counsel addresses the following issues:  (1) whether 

         the trial court admitted inadmissible hearsay that violated defendant's rights under 

         the Confrontation Clause of the Sixth Amendment; (2) whether there is sufficient 

         evidence to support defendant's conviction under 8 U.S.C. . 1326(a); and 

         (3) whether any constitutional error exists because defendant's sentence was 

         enhanced based on a fact that was not submitted to the jury and proved beyond 

         a reasonable doubt.  Counsel submits that these issues lack merit.

              To support a conviction under 8 U.S.C. . 1326(a), the government was 

         required to prove that defendant was an alien at the time alleged in the 

         indictment; that defendant had previously been ordered deported, excluded, or 

         removed from the United States and had departed the country; that defendant was 

         later found in the United States; and that defendant had not obtained the consent 

         of the Attorney General of the United States to reapply for admission since the 

         time of his previous deportation, exclusion, or removal, and departure.  United 

         States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir. 1994).  

              To prove its case, the government presented three witnesses to lay the 

         foundation for the admission of a number of immigration documents.  The trial 

         court admitted the documents, over defendant's objections, under the business 

         records exception to the hearsay rule, Fed. R. Evid. 803(6).  See R. Vol. III at 14. 

         "We review the district court's evidentiary rulings for an abuse of discretion, 

         considering the record as a whole."  United States v. Trujillo, 136 F.3d 1388, 

         1395 (10th Cir. 1998).  "Because hearsay determinations are particularly fact and 

         case specific," our review of those decisions is especially deferential.  Id. 

              The Supreme Court has determined that a statement admissible under an 

         exception to the hearsay rule does not violate the Confrontation Clause if the 

         statement "bears adequate indicia of reliability."  Idaho v. Wright, 497 U.S. 805, 

         815 (1990) (quotation omitted).  Reliability may be inferred if the evidence is 

         admitted under a "firmly rooted hearsay exception."  Id.  The trial court admitted 

         the documents under the business records exception to the hearsay rule, which is 

         a firmly rooted hearsay exception.  United States v. Johnson, 971 F.2d 562, 573 

         (10th Cir. 1992).  Thus, the documents are assumed to be reliable and their 

         admission does not violate the Confrontation Clause.

              Counsel notes that one admitted document was prepared in an 

         administrative deportation hearing when defendant had not been warned of his 

         rights under Miranda v. Arizona, 384 U.S. 436 (1966).  Counsel also correctly
         points out, however, that this court has held that Miranda warnings are not 

         required in deportation proceedings.  United States v. Valdez, 917 F.2d 466, 469 

         (10th Cir. 1990).  As a result, we find no error with respect to the admission of 

         the challenged immigration documents.

              The next question is whether the evidence is sufficient to support the 

         conviction under . 1326(a).  The government presented evidence showing that 

         defendant is a citizen and national of Mexico who had previously been deported. 

         The government also showed that defendant was later found in this country 

         without having sought permission to reapply for admission.  Based on our review 

         of the record, we find the evidence sufficient to prove the elements required under 

         . 1326(a).

              Finally, counsel has addressed whether any constitutional error exists in the 

         enhancement of defendant's sentence under 8 U.S.C. . 1326(b) & (b)(2).  The 

         Supreme Court's recent decision in Apprendi v. New Jersey requires that facts 

         "[o]ther than the fact of a prior conviction" used to enhance the penalty for 

         a crime beyond the statutory maximum must be submitted to a jury and proved 

         beyond a reasonable doubt.  530 U.S. 466, 490 (2000).  Thus, under the express 

         language of Apprendi, it was not error that the government did not present the 

         fact of defendant's prior aggravated felony conviction to the jury.  Moreover, in 

         Apprendi, the Court expressly declined to overrule its previous decision in
         Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which holds that 

         . 1326(b) sets out a sentencing factor rather than a separate immigration-related 

         offense.  Apprendi, 530 U.S. at 489-90.  We therefore remain bound by 

         Almendarez-Torres.  United States v. Dorris, 236 F.3d 582, 587 (10th Cir. 2000), 

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

              After a careful review, we conclude that the record discloses no error. 

         We grant counsel's motion to withdraw.  The judgment of the district court is 

         AFFIRMED.  The mandate shall issue forthwith. 


                                                 Entered for the Court
                                                 Stephen H. Anderson 
                                                 Circuit Judge

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