United States v. De La Cruz-Gonzalez

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 16, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40469
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO DE LA CRUZ-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1644-ALL
--------------------
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
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 (2000). De la Cruz-Gonzalez contends
also that his sentence was imposed illegally in light of Blakely
v. Washington, 124 S. Ct. 2531 (2004). He concedes that these

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No. 04-40469
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arguments are foreclosed. See Almendarez-Torres v. United
States, 523 U.S. 224 (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 Almendarez-Torres 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.

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