UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAYMUNDO CHAVEZ-AVILA, a/k/a Ray Avilar-Noyola,

Defendant-Appellant.

No. 06-4169

(District of Utah)

(D.C. No. 2:05-CR-902-TS)

ORDER AND JUDGMENT*

Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.

In December 2005, Raymundo Chavez-Avila was indicted for illegal reentry following deportation in violation of 8 U.S.C. § 1326(a). Concurrently with the indictment, the government filed a notice of its intent to seek a sentencing enhancement under 8 U.S.C. § 1326(b), which increases the maximum penalty for a violation of § 1326(a) from two years to twenty years if the defendant was previously deported "subsequent to a conviction for commission of an aggravated felony." 8 U.S.C. § 1326(b). This enhancement applies to Mr. Chavez-Avila because he was convicted in 1992 of "Possession/Sale of a Controlled Substance" in California.2 R. Vol. I, Doc. 2, at 1. Mr. Chavez-Avila eventually pleaded guilty and was sentenced to seventy months imprisonment, the low end of his applicable advisory guidelines range.

On appeal, Mr. Chavez-Avila urges us to vacate his sentence because it is longer than § 1326(a)'s two-year statutory maximum. He argues that the government must allege his prior felony conviction in the indictment and prove it at trial before he is subject to § 1326(b)'s enhancement provision—actions the government did not take in his case.

To his credit, Mr. Chavez-Avila concedes that his argument is foreclosed by the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and our post-Booker cases discussing Almendarez-Torres' continuing viability, see United States v. Moore, 401 F.3d 1220, 1223–24 (10th Cir. 2005). As we explained in Moore, it is not our prerogative to overrule a Supreme Court case, however uncertain its underpinnings may be in light of subsequent developments. See id. Thus, Mr. Chavez-Avila wisely admits that the only legitimate reason "[h]e raises th[is] issue [is] to preserve it for further review in the Supreme Court." Appellant's Br. 7.

Accordingly, we hold that Mr. Chavez-Avila's sentence is proper based on Almendarez-Torres. The judgment of the United States District Court for the District of Utah is AFFIRMED.

Entered for the Court,

Michael W. McConnell

Circuit Judge