USA v. Rojas-Gines

Filing 920070228


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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 28, 2007 Charles R. Fulbruge III Clerk 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 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40198 -2the 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 See United States v. Accordingly, we affirm correction pursuant to FED. R. CRIM. P. 36. Sapp, 439 F.2d 817, 820 (5th Cir. 1971). 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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