United States of America, Appellee, v. Francisco Encarnacion-mendez, Defendant-appellant, 271 F.3d 80 (2d Cir. 2001)

Defendant Francisco Encarnacion-Mendez, convicted of attempting to reenter the United States without the permission of the United States Attorney General after having been deported following conviction of an aggravated felony, in violation of 8U.S.C. §1326, and sentenced principally to 77 months' imprisonment pursuant to §1326(b) (2), has appealed. On June 8, 2000, Darrell B. Fields, counsel for Encarnacion-Mendez, moved for permission to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), on the ground that there was no nonfrivolous issue for review. The government moved for summary affirmance.

Fields has now moved to withdraw his Anders motion in order to file a brief contending that Encarnacion-Mendez could not properly be subject to the enhanced penalties of 8 U.S.C. §1326(b) (2) because the indictment did not allege that Encarnacion-Mendez had been convicted of an aggravated felony prior to his deportation and his predeportation conviction was neither admitted by him nor proven beyond a reasonable doubt. The supplemental brief would argue that although Almendarez-Torres v. United States, 523 U.S. 224 (1998), held that such a conviction need not be alleged in the indictment or proven beyond a reasonable doubt, the rationale of the Supreme Court's June 26, 2000 decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), requires the overruling of Almendarez-Torres. The present motion to withdraw the Anders motion acknowledges that such an argument has been rejected by this Court in United States v. Latorre-Benavides, 241 F.3d 262 (2d Cir.) (per curiam), cert. denied, 121 S. Ct. 2013 (2001); but Fields states that the purpose of filing a new brief would be to "preserve the [Almendarez-Torres-overruling] issue for a petition for a writ of certiorari" (Declaration of Darrell B. Fields dated October 2, 2001, at3).

UPON DUE CONSIDERATION WHEREOF, IT IS ORDERED that the present motion to withdraw the prior Anders motion be and it hereby is granted.

Further, the present motion is deemed a supplemental brief raising the Almendarez-Torres-overruling issue on behalf of Encarnacion-Mendez and preserving it for appellate review. Accordingly, additional briefing in this Court is unnecessary, and the motion to file a further brief herein is denied.

We conclude that the Almendarez-Torres-overruling issue lacks merit for the reasons stated in United States v. Latorre-Benavides, 241 F.3d at 264. And finding, for the reasons stated in counsel's original Anders brief, no other nonfrivolous issue for review, we affirm the judgment of conviction.

The government's motion for summary affirmance, which was based in part on the now-withdrawn Anders motion, is denied as moot.