IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20376
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESPIRIDION BARRAGAN-CASTILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-718-ALL
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent
Espiridion Barragan-Castillo has filed a motion for leave to
withdraw and has filed a brief as required by Anders v.
California, 386 U.S. 738 (1967). Barragan-Castillo filed a
response, arguing that his prior aggravated felony conviction was
an element of the offense which should have been alleged in the
indictment. He acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998),
but he seeks to preserve the issue for Supreme Court review in
*
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that this opinion should not be published and is not precedent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. 01-20376
-2-
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). This
argument lacks merits as the indictment did allege that Barragan-
Castillo had a prior aggravated felony conviction. Our
independent review of the brief and the record discloses no
nonfrivolous issue in this direct appeal. Accordingly, the
motion for leave to withdraw is GRANTED, counsel is excused from
further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2.