Opinion
No. 06-4169.
February 2, 2007.
Appeal from the United States District Court for the District of Utah.
Diana Hagen, Office of the United States Attorney District of Utah, Salt Lake City, UT, for Plaintiff-Appellee.
Steven B. Killpack, Fed. Public Defender, Scott Keith Wilson, Office of the Federal Defender, Salt Lake City, UT, for Defendant-Appellant.
Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir. R. 34.1(G). This 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateralestoppel. It may be cited, however, for its persuasive value consistent with Fed.R.App.P. 32.1 and 10th Cir. R. 32.1. 2.
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. R. Vol. 1, 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.
This state conviction does not pose problems similar to those addressed in Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), because it was for more than the mere possession prohibited by 21 U.S.C. § 844. See Lopez, 127 S.Ct. at 629.
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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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 un-certain 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.