USA v. Alex Arguedas, No. 09-20858 (5th Cir. 2011)
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Case: 09-20858 Document: 00511433853 Page: 1 Date Filed: 04/04/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED April 4, 2011 No. 09-20858 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALEX FRANCISCO GARCIA ARGUEDAS, also known as Alex Garcia, also known as Alex Francisco Garcia, also known as Alex Garcia-Arguedas, also known as Alex Garcia Argtuedas, also known as Alex Francisco GarciaArguedas, Defendant-Appellant 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. PER CURIAM:* 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. * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. Case: 09-20858 Document: 00511433853 Page: 2 Date Filed: 04/04/2011 No. 09-20858 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 (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, No. 09-41281, 2011 WL 309173, at *4 (5th Cir. Jan. 31, 2011) (not yet published); see also United States v. Garland, No. 09-50317, 2011 WL 311024, at *2 (5th Cir. Jan. 31, 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 (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 (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 (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.
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