United States v. Cano

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10394
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS JAVIER CANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-256-1
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Carlos Javier Cano was convicted of importing into the
United States more than 100 grams of a mixture and substance
containing heroin in violation of 21 U.S.C. § 952(a). He was
sentenced to 60-months’ imprisonment under the terms of 21 U.S.C.
§§ 960(a)(1) and (b)(2)(A). Notwithstanding those facts, and for
reasons that escape the court, Cano argues that his conviction
and sentence are invalid because Apprendi v. New Jersey, 530 U.S.
466 (2000) rendered 21 U.S.C. § 841 unconstitutional.

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No. 01-10394
-2-
In lieu of filing an appellee’s brief, the Government has
filed a motion asking this court to dismiss this appeal or, in
the alternative, to summarily affirm the district court’s
judgment. Inexplicably, the Government’s motion fails to bring
to this court’s attention the complete irrelevance of Cano’s
argument.
We are seriously disappointed in counsels’ failure to
exercise greater care in preparing their submissions to this
court. We caution counsel for both parties that even apparently
straightforward appeals deserve their full attention.
Cano’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because Cano’s appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2. The Government’s motion to dismiss is GRANTED.
The motion for a summary affirmance is DENIED.
MOTION FOR SUMMARY AFFIRMANCE DENIED; MOTION TO DISMISS
GRANTED; APPEAL DISMISSED AS FRIVOLOUS.

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