United States v. Rojas-Gines

220 F. App'x 298

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 28, 2007
• Docket: 06-40198
• Status: Unpublished

Opinion

PER CURIAM: *

Tomas Rojas-Gines appeals from his guilty plea conviction and sentence for being an alien unlawfully found in the Unites States after deportation in violation of 8 U.S.C. § 1326. Rojas-Gines argues that the “felony” and “aggravated felony” provisions of § 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). His constitutional challenge is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Rojas-Gines contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi, we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.Bd 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Rojas-Gines properly concedes that his argument is foreclosed by Almendarez-Torres and circuit precedent, but he raises it here solely to preserve it for further review.

Rojas-Gines also argues that the written judgment of conviction does not accurately reflect the offense to which he pleaded guilty. As the Government concedes, the written judgment describes Rojas-Gines’s offense as attempted reentry of a deported alien, but the record shows that RojasGines pleaded guilty to being an alien unlawfully found in the United States after deportation. This error is a clerical error subject to correction pursuant to Fed. R.Crim.P. 36. See United States v. Sapp, 439 F.2d 817, 820 (5th Cir.1971). Accordingly, we affirm Rojas-Gines’s conviction and sentence and remand this case to the district court for correction of the clerical error in the judgment pursuant to Rule 36.

AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN JUDGMENT.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.