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.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CR-111-6-P -------------------- 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,

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 __,

(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.