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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-39-ALL
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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that this opinion should not be published and is not precedent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.