IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40614
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JAIME RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:99-CR-81-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Jose
Jaime Rodriguez has moved for leave to withdraw and has filed a
brief as required by Anders v. California, 386 U.S. 738 (1967).
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. Rodriguez’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that this opinion should not be published and is not precedent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.
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,
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.