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                           United States Court of Appeals
                                    Tenth Circuit
                                     OCT 24 2001
                                   PATRICK FISHER
                               FOR THE TENTH CIRCUIT
         UNITED STATES OF AMERICA,        
         v.                                          No. 01-4067
                                               (D.C. No. 00-CR-619-B)
         MANUEL ALCALA-RODRIGUEZ,  also               (D. Utah)
         known as Raymundo Sanchez- Villadares,

         Before TACHA, Chief Judge, BALDOCK, Circuit Judge, 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         (1)     This order and judgment is not binding precedent, except under the 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 Manuel Alcala-Rodriguez 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 prior felony convictions.  Under 

         the enhancement provisions of . 1326(b)(2), and after adjusting for acceptance of 

         responsibility and taking into account defendant's criminal history, the district 

         court sentenced him to forty-one 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 exceeds the maximum penalty for the offense 

         because the fact of his prior conviction was 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.

              Defendant 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 his 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 United States District Court for the District of Utah is AFFIRMED.

                                                 Entered for the Court
                                                 Wade Brorby 
                                                 Senior Circuit Judge