UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARLOS ORANTES-MENDEZ,

Defendant-Appellant.	No. 00-3358

(D.C. No. 00-CR-10082-MLB)

(Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.

Carlos Orantes-Mendez was convicted of illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a). Violations of that statute carry a maximum prison term of two years. However, section 1326(b)(2) provides enhanced prison terms of up to twenty years for those who reenter the country illegally after a previous aggravated felony conviction. In light of Mr. Orantes-Mendez' prior aggravated felony conviction, he was sentenced to fifty- seven months in prison.

Relying on Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000), Mr. Orantes-Mendez argues his enhanced sentence is invalid because the fact of the prior conviction was not specified in his indictment. This argument disregards the explicit language of Apprendi, which limited its application to facts "other than a prior conviction." 466 U.S. at 490. Prior felony convictions remain a valid basis for sentencing enhancements under Almendarez-Torres v. United States, 523 U.S. 224 (1998). See also United States v. Martinez-Villalva, 232 F.3d 1329, 1331-
1332 (10th Cir. 2000) (prior felony remains sentencing factor for section 1326 offense after Apprendi).

Mr. Orantes-Mendez acknowledges these holdings and asserts that he makes his current argument in order to preserve the issue for further appeal. Nevertheless, based upon existing law his appeal must be DENIED.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge