United States v. Rojas-Gines

* 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this opinion should not be published and is not precedent except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
February 28, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40198
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMAS ROJAS-GINES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-520-ALL
--------------------
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
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 (2000). His constitutional challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Rojas-Gines contends that
Almendarez-Torres was incorrectly decided and that a majority of

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No. 06-40198
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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.3d 268, 276 (5th Cir.), cert. denied,
126 S. Ct. 298 (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 Rojas-Gines 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.

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