United States v. Vazquez-Loredo

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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