United States v. Vazquez-Loredo

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 2003
• Docket: 02-51212
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 24, 2003

Charles R. Fulbruge III Clerk No. 02-51212 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO SEBASTIAN VAZQUEZ-LOREDO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-02-CR-168-1-H --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Court-appointed counsel representing Eduardo Sebastian

Vazquez-Loredo (Vazquez) has moved for leave to withdraw and has

filed a brief as required by Anders v. California, 386 U.S. 738

(1967). Vazquez has not filed a response.

Our independent review of counsel’s brief and the record

discloses one possible nonfrivolous issue. Vazquez’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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-51212 -2-

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 questioned by

Apprendi v. New Jersey, 530 U.S. 466, 489 (2000). Counsel could

have raised the issue on appeal in order to preserve it for

Supreme Court review in light of Apprendi.

Because this is a possible nonfrivolous issue for appeal, we

deny counsel’s motion to withdraw. By our denial, Vazquez

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 Apprendi, 530 U.S. at 490; 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, 531 U.S. 1202 (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).

No other non-waived or nonfrivolous issues for appeal are

apparent from the record. Accordingly, counsel’s motion for

leave to withdraw is DENIED, and the decision of the district

court is AFFIRMED.