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                           United States Court of Appeals
                                    Tenth Circuit
                                     OCT 10 2001
                                   PATRICK FISHER
                               FOR THE TENTH CIRCUIT
         UNITED STATES OF AMERICA,        
         v.                                          No. 01-4015
                                               (D.C. No. 00-CR-373-K)
         AARON ALANIZ-RIVERA,                         (D. Utah)


         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         (1)     This order and judgment is not binding precedent, except under the 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.  
              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
         (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.