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.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CR-256-1 -------------------- 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

(a). He was

sentenced to 60-months’ imprisonment under the terms of

(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,

(2000) rendered

unconstitutional.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(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.