USA v. Lopez-Zamora, No. 07-50691 (5th Cir. 2008)

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REVISED AUGUST 29, 2008 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-50691 Conference Calendar August 20, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. J FIDEL LOPEZ-ZAMORA Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 5:06-CR-458-ALL Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* J. Fidel Lopez-Zamora appeals his sentence for illegal reentry following deportation. Lopez-Zamora contends that the 41-month term of imprisonment imposed in his case, based on the enhanced penalty provisions of 8 U.S.C. § 1326(b), exceeds the statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. * The Government moves for summary 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50691 affirmance on the grounds that Lopez-Zamora s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). As Lopez-Zamora concedes, the Government is correct. See Almendarez-Torres, 523 U.S. at 235; United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Lopez-Zamora filed a motion for appointment of counsel in July 2007, after his counsel had moved to withdraw. The motion to withdraw was denied, and Lopez-Zamora has filed no pleading seeking removal of counsel. Therefore, his motion for appointment of counsel is DENIED as moot. Because Lopez-Zamora s argument is foreclosed, the Government s motion for summary affirmance is GRANTED. The Government s alternative motion for an extension of time for filing an appellate brief is DENIED, and the judgment of the district court is AFFIRMED. 2

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