IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10284 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ISMAEL NAJERA GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CR-308-1-P -------------------- April 4, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Counsel for Jose Ismael Najera Garcia (Najera) has moved for

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

California,

(1967). Najera had received a copy of

counsel's brief and has filed a response. Najera contends that the

felony conviction that resulted in his increased sentence under

(b)(2) was an element of the offense that should have

been alleged in the indictment. He argues that the holding of

Apprendi v. New Jersey,

,

(2000), places the authority of Almendarez-Torres v. United States,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10284 -2-

(1998), in question and that, based upon

Apprendi, his sentence was in excess of the statutory maximum.

Najera knowingly and voluntarily waived his right to appeal

his sentence unless the sentence (1) was in excess of the statutory

maximum or (2) constituted an upward departure. Apprendi did not

overrule Almendarez-Torres. See Apprendi,

;

United States v. Dabeit,

(5th Cir. 2000), cert.

denied, __ U.S. __, No. 00-8299,

(Feb. 26, 2001).

Najera's argument is therefore foreclosed.

Counsel’s motion for leave to withdraw is GRANTED, counsel is

excused from further responsibilities herein, and the APPEAL IS

DISMISSED. Najera's motion for appointment of new counsel is

DENIED. SEE 5th Cir. R. 42.2.