United States v. Henderson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10161
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN LERAY HENDERSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CR-111-6-P
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December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Attorney Alexander Calhoun was appointed to represent Kevin
Henderson, and he has now moved for leave to withdraw and filed a
brief as required by Anders v. California, 386 U.S. 738 (1967).
Henderson received a copy of counsel’s motion and brief, and has
filed a response which discusses a difference between the amount
of drugs specified in his indictment and the amount specified in
sentencing calculations.
Henderson’s argument is frivolous because our recent
decisions explain that a fact used in sentencing calculations
*
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that this opinion should not be published and is not precedent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. 00-10161
-2-
which does not increase a penalty beyond the statutory maximum
need not be alleged in an indictment or proven to a jury beyond a
reasonable doubt. See United States v. Keith, __ F.3d __, 2000
WL 1532802 (5th Cir. 2000). In this case, the sentence Henderson
received was increased because of the greater amount of drugs,
but it was still less than the statutory maximum.
Our independent review of the brief and the record discloses
no other non-frivolous issue. 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.