IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10284
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ISMAEL NAJERA GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CR-308-1-P
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April 4, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Counsel for Jose Ismael Najera Garcia (Najera) has moved for
leave to withdraw and has filed a brief as required by Anders v.
California, 386 U.S. 738 (1967). Najera had received a copy of
counsel's brief and has filed a response. Najera contends that the
felony conviction that resulted in his increased sentence under 8
U.S.C. § 1326(b)(2) was an element of the offense that should have
been alleged in the indictment. He argues that the holding of
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 2362-63
(2000), places the authority of Almendarez-Torres v. United States,
*
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this opinion should not be published and is not precedent except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. 00-10284
-2-
523 U.S. 224, 226-27 (1998), in question and that, based upon
Apprendi, his sentence was in excess of the statutory maximum.
Najera knowingly and voluntarily waived his right to appeal
his sentence unless the sentence (1) was in excess of the statutory
maximum or (2) constituted an upward departure. Apprendi did not
overrule Almendarez-Torres. See Apprendi, 120 S. Ct. at 2362;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, __ U.S. __, No. 00-8299, 2001 WL 77067 (Feb. 26, 2001).
Najera's argument is therefore foreclosed.
Counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS
DISMISSED. Najera's motion for appointment of new counsel is
DENIED. SEE 5th Cir. R. 42.2.