United States v. Rios-Perez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 13, 2001
• Docket: 00-20566
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20566 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAZARO RIOS-PEREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-663-1 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

The counsel appointed to represent Lazaro Rios-Perez has

moved to withdraw and has filed a brief as required by Anders v.

California, 386 U.S. 738 (1967). Rios-Perez has filed a response

in which he avers that counsel was ineffective. Counsel also

identifies as a possible issue for appeal whether trial counsel

was ineffective for failing to move for a downward departure on

the basis that Rios-Perez’s criminal history category was

overrepresented. The record has not been adequately developed

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-20566 -2-

for us to consider these claims on direct appeal. See United

States v. Haese, 162 F.3d 359, 363-64 (5th Cir. 1998).

Rios-Perez also challenges his sentence, contending that the

enhancement of his sentence based on a prior aggravated-felony

conviction and his resulting 77-month sentence are illegal

because the prior aggravated-felony conviction was not alleged in

his indictment. He concedes that this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998). He

nevertheless seeks to preserve the issue for Supreme Court review

in light of the decision in Apprendi v. New Jersey 120 S. Ct.

2348 (2000).

The continuing validity of Almendarez-Torres has been cast

into doubt by Apprendi. See id. at 2362 (finding it “arguable

that Almendarez-Torres was incorrectly decided”). Given that

Rios-Perez has raised the Almendarez-Torres issue in opposition

to counsel’s motion to withdraw and, thereby, has identified a

possible nonfrivolous issue for appeal, we deny counsel’s motion

to withdraw.

Denying the motion to withdraw will serve to preserve the

Almendarez-Torres issue for further review. However, we

pretermit further briefing and AFFIRM the judgment of the

district court.

Apprendi did not overrule Almendarez-Torres. See id. at

2362; see also United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000)(noting that the Supreme Court in Apprendi expressly

declined to overrule Almendarez-Torres), cert. denied, 121 S. Ct.

1214 (2001). This court must therefore follow the precedent set No. 00-20566 -3-

in Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Dabeit, 231 F.3d at 984 (internal

quotation and citation omitted).

AFFIRMED.