USA v. Alex Arguedas

Filing

UNPUBLISHED OPINION FILED. [09-20858 Dismissed as Frivolous] Judge: EGJ , Judge: JWE , Judge: CH Mandate pull date is 04/25/2011 for Appellant Alex Francisco Arguedas; granting motion to withdraw as counsel filed by Attorney Ms. Lourdes Rodriguez for Appellant Mr. Alex Francisco Arguedas [6615369-2] [09-20858]

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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.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.