IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41251
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONEL BALDERAS-ALVARADO,
also known as Ricardo Silva,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:00-CR-45-ALL
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June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Leonel
Balderas-Alvarado has moved for leave to withdraw and has filed a
brief as required by Anders v. California, 386 U.S. 738 (1967).
Balderas-Alvarado has filed a response to counsel’s motion.
Our independent review of the brief, the record, and the
response of Balderas-Alvarado discloses one possible nonfrivolous
issue for appeal. His offense level and sentence were increased
for his having been deported after a prior aggravated-felony
conviction that was not alleged in his indictment. An argument
*
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that this opinion should not be published and is not precedent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. 00-41251
-2-
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, 489 (2000)(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.
In light of this possible nonfrivolous issue for appeal, we
deny counsel’s motion to withdraw. By our denying the motion to
withdraw, Balderas-Alvarado 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, 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).
Finally, the record has not been adequately developed for us
to consider Balderas-Alvarado’s ineffective-assistance-of-counsel
arguments on direct appeal. See United States v. Haese, 162 F.3d
359, 363 (5th Cir. 1998).
Accordingly, counsel’s motion for leave to withdraw is
DENIED, and the decision of the district court is AFFIRMED.