United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-51212
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO SEBASTIAN VAZQUEZ-LOREDO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CR-168-1-H
--------------------
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Court-appointed counsel representing Eduardo Sebastian
Vazquez-Loredo (Vazquez) has moved for leave to withdraw and has
filed a brief as required by Anders v. California, 386 U.S. 738
(1967). Vazquez has not filed a response.
Our independent review of counsel’s brief and the record
discloses one possible nonfrivolous issue. Vazquez’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that this opinion should not be published and is not precedent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.
No. 02-51212
-2-
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 questioned by
Apprendi v. New Jersey, 530 U.S. 466, 489 (2000). Counsel could
have raised the issue on appeal in order to preserve it for
Supreme Court review in light of Apprendi.
Because this is a possible nonfrivolous issue for appeal, we
deny counsel’s motion to withdraw. By our denial, Vazquez
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 other non-waived or nonfrivolous issues for appeal are
apparent from the record. Accordingly, counsel’s motion for
leave to withdraw is DENIED, and the decision of the district
court is AFFIRMED.