United States v. Guerrero-Correa , 43 F. App'x 185 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 8 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-4162
(D.C. No. 00-CR-616-B)
CARLOS GUERRERO-CORREA, (D. Utah)
also known as Roberto Rojas-Flores,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO , ANDERSON, and BALDOCK, Circuit Judges.
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.
Appellant was indicted for and pleaded guilty to one count of illegal reentry
into the United States after deportation in violation of 8 U.S.C. § 1326. The
*
This order and judgment is not binding precedent, except under the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.
maximum sentence penalty under the statute is two years’ imprisonment.
Subsection (b) of the statute increases the maximum possible penalty to twenty
years’ imprisonment if the defendant was convicted of an aggravated felony
before deportation. See 8 U.S.C. § 1326(b). The district court sentenced
appellant to eighty-four months’ imprisonment followed by three years of
supervised release. This sentence included an enhancement based on a prior
aggravated felony conviction.
On appeal, appellant 1
argues the maximum prison term to which he is
subject is two years. He argues this limit is consistent with the maximum penalty
contained in § 1326(a), which was the offense alleged in the indictment and the
offense to which he pleaded guilty. His argument rests on the United States
Supreme Court’s decision in Apprendi v. New Jersey , 530 U.S. 466 (2000).
In Apprendi , the Court held “ [o]ther than the fact of a prior conviction ,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Id. at 490 (emphasis added). As appellant acknowledges, and as the language
1
Counsel for appellant filed a brief pursuant to Anders v. California ,
386 U.S. 738 (1967), and appellant filed a pro se response, in which he requests
appointment of new counsel and an extension of time within which he may find
new counsel.
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quoted above makes clear, the Apprendi rule is subject to an explicit exception
for prior convictions.
Appellant states he brings his appeal in part to preserve an argument for
the Supreme Court. He has done so. At this time, however, appellant’s argument
based on Apprendi is without merit.
In his pro se notice of appeal, appellant asserts several additional
arguments. First, he argues he received ineffective assistance of trial counsel.
Ineffective assistance of counsel claims should be brought in collateral
proceedings rather than on direct appeal. See United States v. Galloway ,
56 F.3d 1239, 1240 (10th Cir. 1995).
Second, appellant argues the district court subjected him to double
punishment in violation of the United States Constitution by imposing a sentence
for the instant offense based on his prior aggravated felony conviction, for which
he already served four years in prison. However, the sentencing guidelines
require a judge to consider a prior conviction when calculating an offense level
and a criminal history category. See United States v. Florentino , 922 F.2d 1443,
1447 (10th Cir. 1990).
Third, appellant argues the current form of 8 U.S.C. § 1326 was enacted
after his deportation in 1985, and therefore, he cannot be punished for re-entry
after deportation. However, the event for which appellant was sentenced was his
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re-entry, not his deportation, and his re-entry occurred after enactment of the
current form of § 1326.
The judgment of the United States District Court for the District of Utah
is AFFIRMED. Appellant’s pro se requests for an extension of time and for
appointment of counsel are DENIED.
Entered for the Court
John C. Porfilio
Circuit Judge
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