United States v. Villafranca-Benavide

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 8, 2002
• Docket: 01-21164
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21164 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS VILLAFRANCA-BENAVIDES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-39-ALL -------------------- August 7, 2002

Before JOLLY, HIGGINBOTHAM and PARKER, Circuit Judges.

PER CURIAM:*

Carlos Villafranca-Benavides appeals his conviction and

sentence for illegal reentry into the United States following

deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2).

Villafranca-Benavides contends that the district court erred in

delegating to the probation office the authority to determine his

ability to pay the costs of drug abuse detection efforts, that 8

U.S.C. § 1326(b)(2) is unconstitutional on its face and as

applied, that the district court erred in refusing to suppress

evidence of Villafranca-Benavides’ prior administrative

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21164 -2-

deportation, and that the district court’s written judgment

contains a clerical error.

Villafranca-Benavides’ first three arguments are foreclosed

by binding precedent. See United States v. Warden, 291 F.3d 363,

364-66 (5th Cir. 2002); United States v. Benitez-Villafuerte, 186

F.3d 651, 657-58 (5th Cir. 1999); Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998). Accordingly, Villafranca-

Benavides’ conviction and sentence are AFFIRMED.

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

judgment erroneously states that Villafranca-Benavides pleaded

guilty, when he was in fact found guilty after a bench trial on

stipulated facts. This case is 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.