USA v. Villafuerte-Rodrigue

Filing 920080324

Opinion

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit

FILED
No. 07-40841 Summary Calendar
March 24, 2008 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA Plaintiff-Appellee v. ALFREDO VILLAFUERTE-RODRIGUEZ, also known as Alfredo RodriguezVillafuerte Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:07-CR-290-1

Before SMITH, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM:* In the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Alfredo Villafuerte-Rodriguez challenges the constitutionality of 8 U.S.C. § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. This

contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40841 235 (1998). See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008). Villafuerte also seeks our remanding for correction of a clerical error in the judgment, pursuant to Federal Rule of Criminal Procedure 36. The Government joins this request. This matter is remand for the limited purpose of correcting the judgment to reflect that Villafuerte was found guilty after a plea of not guilty. See FED. R. CRIM. P. 36. AFFIRMED; REMANDED FOR THE LIMITED PURPOSE OF CORRECTING CLERICAL ERROR IN JUDGMENT.

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