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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-663-1
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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that this opinion should not be published and is not precedent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
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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
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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.