Opinion
No. 09-20858.
April 4, 2011.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Lourdes Rodriguez, Houston, TX, for Defendant-Appellant.
Alex Francisco Arguedas, Post, TX, pro se.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:09-CR-297-1.
Before JOLLY, ELROD and HAYNES, Circuit Judges.
Alex Francisco Garcia Arguedas entered a plea of guilty to a one-count indictment of having been found illegally present in the United States subsequent to having been convicted of a felony, in violation of 8 U.S.C. § 1326(a) and (b)(1). He was sentenced to serve 29 months in prison and a three year term of supervised release. He subsequently appealed.
The attorney appointed to represent Garcia has now moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). If an Anders brief is adequate on its face, as is the case here, then we "confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief." United States v. Flores, 632 F.3d 229, 233 (5th Cir. 2011) (not yet published); see also United States v. Garland, 632 F.3d 877, 879 (5th Cir. 2011) ("if counsel submits a brief meeting [the Anders standard], we will no longer independently scour the record looking for nonfrivolous issues") (not yet published). Garcia has filed a pro se response. His only argument, essentially, is that this court should reconsider Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) — where the Supreme Court rejected the argument that 8 U.S.C. § 1326 is unconstitutional as applied and on its face — in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Although we acknowledge that Garcia is attempting to preserve his argument for review by the Supreme Court, we have held that this issue "no longer serves as a legitimate basis for appeal." See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007) (holding that this argument is "fully foreclosed" by the Supreme Court's decision in James v. United States, 550 U.S. 192, 213 n. 8, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)); see also United States v. Olalde-Hernandez, 630 F.3d 372, 377 (5th Cir. 2011). Therefore, our independent review of the record, counsel's brief, and Garcia's response discloses no nonfrivolous issue for appeal.
Accordingly, counsel's 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.