United States v. De La Cruz-Gonzalez

115 F. App'x 224

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 16, 2004
• Docket: 04-40469
• Status: Unpublished

Opinion

PER CURIAM: *

Rogelio de la Cruz-Gonzalez has appealed his guilty-plea conviction of attempting to enter the United States illegally following deportation. De la Cruz-Gonzalez contends that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). De la Cruz-Gonzalez contends also that his sentence was imposed illegally in light of Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He concedes that these arguments are foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir.2004), petition for cert. filed (U.S. July 14, 2004) (No. 04-5263); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). He asserts that AlmendarezTorres has been called into doubt by Apprendi and Blakely. He seeks to preserve the issues for possible Supreme Court review.

De la Cruz-Gonzalez contends, and the Government concedes, that the judgment recites incorrectly that de la Cruz-Gonzalez was convicted of illegal reentry following deportation, instead of an attempt to commit that offense. The case must be remanded to the district court so that the judgment may be reformed to reflect the correct offense of conviction. See United States v. Powell, 354 F.3d 362, 371-72 (5th Cir.2003); Fed. R.Crim. P. 36.

AFFIRMED and REMANDED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.