United States v. Reyes-Gomez

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 21, 2002
• Docket: 01-41107
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41107 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL REYNERIO REYES-GOMEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-345-1 -------------------- November 19, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Manuel Reynerio Reyes-Gomez appeals his conviction following

a guilty plea to attempted illegal reentry. He argues pursuant to

Apprendi v. New Jersey, 530 U.S. 466 (2000), that the aggravated

felony provision of 8 U.S.C. § 1326(b) is an element of the offense

of illegal reentry which must be charged in the indictment and

found by a jury beyond a reasonable doubt. He correctly concedes

that this argument is foreclosed by Almendarez-Torres v. United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41107 -2-

States, 523 U.S. 224 (1998), and he raises it only to preserve it

for Supreme Court review. See also United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000) (Apprendi expressly declined to

overrule Almendarez-Torres), cert. denied, 531 U.S. 1202 (2001).

We must follow the precedent set in Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.” Id.

Accordingly, Reyes’s conviction is AFFIRMED.

However, as the Government concedes, the district court's

written judgment erroneously describes the nature of Reyes’s

offense as “[b]eing found in the U.S.,” when Reyes was in fact

found guilty of the distinct offense of attempted illegal reentry.

See United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir.

2000). This case is therefore REMANDED so that the district court

may correct its clerical error, pursuant to FED. R. CRIM. P. 36. See

United States v. Sapp, 439 F.2d 817, 821 (5th Cir. 1971).

AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN

JUDGMENT.