United States v. Ferreyro-Ortiz ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-41206
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL FERREYRO-ORTIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-233-ALL
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Before HIGGINBOTHAM, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Retained counsel for Miguel Ferreyro-Ortiz (Ferreyro) has
moved for leave to withdraw from this appeal of Ferreyro’s
sentence for violating 8 U.S.C. § 1326(a) and (b)(2) and has
filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967). Ferreyro has filed a response, arguing for the first
time that the district court erred by enhancing his sentence
based on a prior state conviction that he contends was
unconstitutionally obtained and that the 16-level increase in
*
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that this opinion should not be published and is not precedent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. 02-41206
-2-
U.S.S.G. § 2L1.2(b)(1)(A) and 8 U.S.C. §§ 1326(a) and (b)(2)
violate international law. He also has filed a motion for the
appointment of counsel.
Although not raised by Ferreyro, this court is required to
examine jurisdiction sua sponte if necessary. See Williams v.
Chater, 87 F.3d 702, 704 (5th Cir. 1996). The district court’s
grant of Ferreyro’s motion to withdraw the notice of appeal was
filed after his appeal was docketed in this court. Thus, the
district court lacked jurisdiction to grant the motion, and this
court maintains jurisdiction over the appeal. See United States
v. Clark, 917 F.2d 177, 179 (5th Cir. 1990).
Our independent review of the brief, Ferreyro’s response,
and the record discloses no nonfrivolous issue for appeal.
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. Ferreyro’s motion for
the appointment of counsel is DENIED.