United States v. Leos ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20426
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELQUIADES ROCHA LEOS, also known as
Jose Leos, also known as El Pelon,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-370-2
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June 1, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Counsel for Melquiades Rocha Leos has moved for leave to
withdraw and has filed a brief as required by Anders v.
California, 386 U.S. 738 (1967). Leos has received a copy of
counsel's brief and has filed a response.
Leos argues that the district court improperly enhanced his
sentence under United States Sentencing Guidelines §§ 2D1.1(b)(1)
and 3B1.1(b). Leos knowingly and voluntarily waived his right to
appeal his sentence or the manner in which it was determined.
*
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that this opinion should not be published and is not precedent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. 00-20426
-2-
See United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).
This argument is therefore foreclosed.
Leos also challenges the indictment, the sentence, and
counsel’s performance on the basis of Apprendi v. New Jersey, 530
U.S. 466 (2000), and Jones v. United States, 526 U.S. 227 (1999).
There can be no Apprendi or Jones violation because Leos’s
sentence was not increased above the statutory maximum of life
imprisonment by any of the findings made by the district court at
sentencing. United States v. Keith, 230 F.3d 784, 786-87 (5th
Cir. 2000), cert. denied, 121 S. Ct. 1163 (2001).
We do not address Leos’s conclusional assertion that counsel
was ineffective because he failed to investigate the case or
prepare for trial. See United States v. Volsken, 766 F.2d 190,
193 (5th Cir. 1985).
Our independent review of the brief, the record, and Leos’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. Leos’s motion for
appointment of new counsel is DENIED.