United States v. Cervantes-Garcia

* 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opinion should not be published and is not precedent except under the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. 00-11169
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CRUZ CERVANTES-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas, Fort Worth
(4:00-CR-109-1-Y)
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May 22, 2001
OPINION ON GOVERNMENT’S MOTION
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
The government has moved for dismissal inasmuch as the Appellant
has raised in his sole issue an argument controlled by Almendarez-
Torres v. United States, 523 U.S. 224, 226-27 (1998). Indeed,
Appellant does not claim otherwise; he concedes that Almendarez-
Torres is the controlling authority and stands in contravention of
his argument. Nonetheless, he raises the argument to protect his

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right to further review. We do not agree with the government that
the claim is frivolous because a member of the Supreme Court that
decided Almendarez-Torres has indicated in a related case that the
decision in Almendarez-Torres was mistaken. See Apprendi v. New
Jersey, 120 S.Ct. 2348, 2367-80 (2000) (Thomas, J., concurring).
Almendarez-Torres was decided by a 5-4 vote with Justice Thomas a
part of the majority. Under such circumstances, we reject the
contention that Appellant’s appeal is frivolous. Nonetheless,
because it is unmistakably clear that Almendarez-Torres controls the
disposition of the case and we are bound thereby, we summarily affirm
the judgment of the district court in lieu of dismissal of Appellant’s
appeal.
Motion Denied, Judgment AFFIRMED.

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