IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40028
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS ROMERO-RODRIGUEZ, also known as Jesus Vasquez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-99-CR-676-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Jose Luis
Romero-Rodriguez has moved for leave to withdraw and has filed a
brief as required by Anders v. California, 386 U.S. 738 (1967).
Romero-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. Romero-Rodriguez’s
offense level and sentence were increased for his having been
deported after a prior aggravated-felony conviction which was not
*
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that this opinion should not be published and is not precedent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. 00-40028
-2-
alleged 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,
Romero-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.