United States v. Rodriguez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40614 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE JAIME RODRIGUEZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:99-CR-81-1 - - - - - - - - - - April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

The Federal Public Defender appointed to represent Jose

Jaime Rodriguez has moved for leave to withdraw and has filed a

brief as required by Anders v. California, 386 U.S. 738 (1967).

Rodriguez received a copy of counsel’s motion and brief, but did

not file a response.

Our independent review of the brief and the record discloses

one possible nonfrivolous issue for appeal. Rodriguez’s offense

level and sentence were increased for his having been deported

after a prior aggravated-felony conviction which was not alleged

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. in his indictment. An argument that the prior conviction should

have been alleged in the indictment is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998). However, the

continuing validity of Almendarez-Torres has been cast into doubt

by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

See id. at 2362 (finding it “arguable that Almendarez-Torres was

incorrectly decided”). Counsel could have raised the issue on

appeal in order to preserve it for Supreme Court review in light

of Apprendi.

Because our independent review of the record has revealed

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

motion to withdraw. By our denying the motion to withdraw,

Rodriguez preserves the Almendarez-Torres issue for further

review. We pretermit further briefing, however, and AFFIRM the

judgment of the district court because Apprendi did not overrule

Almendarez-Torres. See id., 120 S. Ct. 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 follow the precedent set 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).

Accordingly, counsel’s motion for leave to withdraw is

DENIED, and the decision of the district court is AFFIRMED.