                  IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT



                                       No. 00-11257
                                     Summary Calendar



UNITED STATES OF AMERICA,
                                                            Plaintiff-Appellee,
                                             versus

RAMIRO TERRAZAS-AVITIA,

                                                            Defendant-Appellant.
                   ________________________________________

                      Appeal from the United States District Court
                          for the Northern District of Texas
                             USDC No. 4:00-CR-106-1-Y
                    _______________________________________
                                    May 24, 2001

Before POLITZ, JOLLY, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*
       The Federal Public Defender appointed to represent Ramiro Terrazas-Avitia

on appeal seeks leave to withdraw and has filed a brief as required by Anders v.

California.1 Terrazas has received a copy of counsel’s brief and has filed a response

contending that the felony conviction that resulted in his increased sentence under 8

       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
        386 U.S. 738 (1967).
U.S.C. § 1326(b)(2) was an element of the offense that should have been alleged in
the indictment. He further contends that the holding of Apprendi v. New Jersey2

places the authority of Almendarez-Torres v. United States3 in question and that,

based upon Apprendi, his sentence was in excess of the statutory maximum.
       Our review of the record, counsel’s brief, and Terrazas’s response thereto

discloses no nonfrivolous appellate issue. Apprendi did not overrule Almendarez-

Torres.4

       Counsel’s motion for leave to withdraw is GRANTED and counsel is
excused from further responsibilities herein. The appeal is DISMISSED. See 5TH
CIR. R. 42.2.




       2
        530 U.S. 466, 489-90 (2000)
       3
        523 U.S. 224 (1998)
       4
        Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000), cert. denied, 121 S. Ct. 1214 (2001).
                                               2
