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                           United States Court of Appeals
                                    Tenth Circuit
                                     SEP 4 2001
                                   PATRICK FISHER
                                   TENTH CIRCUIT
                                                     No. 00-8053
         UNITED STATES OF AMERICA,              (District of Wyoming)
                                              (D.C. No. 00-CR-46-01-D)
         RAFAEL PEREZ-AGUIRRE, also  known
         as Bardomiano Perez-Macedo,      

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

              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 district court sentenced Perez-Aguirre to seventy months

         (1)     This order and judgment is not binding precedent, except under the 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.
         imprisonment.  On appeal, Perez-Aguirre challenges the district court's refusal 

         to depart from the sentencing guidelines and the enhancement of his sentence 

         based on a prior aggravated felony conviction that was not charged in the 

         indictment.  Exercising jurisdiction pursuant to 28 U.S.C. . 1291, this court 

         affirms the district court as to the sentence enhancement issue but lacks the 

         authority to exercise jurisdiction as to the departure issue.


              Perez-Aguirre was stopped for speeding near Powell, Wyoming.  During 

         the course of the traffic stop, the patrolman conducted a consensual search of 

         the vehicle and discovered a fraudulent Social Security card and a fraudulent 

         alien registration card.  Perez-Aguirre was arrested and identified as a 

         previously deported alien who had been convicted of a controlled substance 

         felony.  The records revealed that Perez-Aguirre had not received permission 

         by the Attorney General to reenter the United States.

              Perez-Aguirre was indicted for (1) illegally reentering the United States 

         following deportation and prior conviction for an aggravated felony, (2) 

         knowingly and willfully using a fraudulent alien registration card, and (3) 

         knowingly and falsely, with intent to deceive, using a social security account 

         number not assigned to him.  Perez-Aguirre pleaded guilty to the first charge, 

         and the government dismissed the other two counts in the indictment.  At the 

         sentencing hearing, Perez-Aguirre requested a downward departure from the
         sentencing guidelines, which the district court refused to grant.  Perez-Aguirre 

         was sentenced to seventy months imprisonment. 


              On appeal, Perez-Aguirre challenges the district court's refusal to grant a 

         downward departure from the sentencing guidelines.  He claims the district 

         court refused to recognize its authority and responsibility to grant the 

         departure, which he requested in light of his rehabilitation, family situation, 

         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 in this case heard 

         arguments from Perez-Aguirre and the government regarding the defendant's 

         request for a downward departure.  The transcript of the hearing clearly 

         demonstrates that the sentencing court considered Perez-Aguirre's 

         circumstances but ultimately determined that there was nothing about the 

         defendant "that takes him outside the heartland of cases in any respect."  There 

         is nothing in the record to support Perez-Aguirre's assertion that the district
         court misunderstood its authority to depart from the sentencing guidelines. 

         Thus, this court has no jurisdiction to review Perez-Aguirre's departure claim.

              Perez-Aguirre also alleges his constitutional rights 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 element 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 after 

         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 in 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 without merit.


              For the foregoing reasons, this court may not exercise jurisdiction to 

         review the district court's refusal to depart from the sentencing guidelines.
         With respect to the sentence enhancement at issue, this court AFFIRMS the 

         district court.     

                                       ENTERED FOR THE COURT


                                       Michael R. Murphy
                                       Circuit Judge