United States v. Ojeda-Sierra , 16 F. App'x 873 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 31 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 01-4000
v. (D. Utah)
CARLOS OJEDA-SIERRA, also (D.C. No. 00-CR-243-J)
known as Carlos Garcia-Sierra,
Defendant-Appellant.
ORDER AND JUDGMENT *
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.
*
This order and judgment is not binding precedent, except under the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
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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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