IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51281
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS AYALA-GUZMAN, also known as
Carlos Sanchez, also known as David Bravo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CF-1057-DB
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August 2, 2002
Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Court-appointed counsel representing Carlos Ayala-Guzman has
moved for leave to withdraw and has filed a brief as required by
Anders v. California, 386 U.S. 738 (1967). Ayala-Guzman has not
filed a response.
Our independent review of counsel’s brief and the record
discloses one possible nonfrivolous issue. Ayala-Guzman’s
offense level and sentence were increased for his having been
*
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that this opinion should not be published and is not precedent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. 01-51281
-2-
deported after a prior aggravated-felony conviction which was not
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, 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.
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,
Ayala-Guzman 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, 531 U.S. 1202 (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).
No. 01-51281
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Accordingly, counsel’s motion for leave to withdraw is
DENIED, and the decision of the district court is AFFIRMED.