United States v. Cordova-Munoz ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 03-10367
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DANIEL CORDOVA-MUNOZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CR-347-ALL
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Attorney Robert J. Herrington, appointed to represent
Jose Daniel Cordova-Munoz (“Cordova-Munoz”), has requested
leave to withdraw and has filed a brief as required by Anders
v. California, 386 U.S. 738 (1967). Cordova-Munoz has filed a
response. He contends that the district court was unaware that
it had the authority to grant a downward departure and that the
sentencing enhancements in 8 U.S.C. § 1326 (b)(1)&(b)(2) are
*
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that this opinion should not be published and is not precedent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. 03-10367
-2-
unconstitutional based on the holding in Apprendi v. New Jersey,
530 U.S. 466 (2000).
Cordova-Munoz knowingly and voluntarily waived his right
to appeal his sentence except if his punishment exceeded the
statutory maximum, if the district court upwardly departed from
the applicable sentencing guidelines range, or if there were
any mathematical errors in his sentencing. United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994). Cordova-Munoz thus
waived the right to raise the argument regarding the district
court’s failure to grant a downward departure, and his argument
regarding the constitutionality of § 1326(b)(1)&(b)(2) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998).
Our independent review of the brief, the record, and
Cordova-Munoz’s response discloses no nonfrivolous issue for
appeal. Counsel’s motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities, and the appeal
is DISMISSED. See 5TH CIR. R. 42.2.
MOTION GRANTED; APPEAL DISMISSED.