United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 24, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-20368
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR CARLOS CARBALLO-BALDERAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-824-ALL
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Omar Carlos Carballo-Balderas (Carballo) appeals his
conviction and sentence for illegal reentry after deportation in
violation of 8 U.S.C. § 1326. Carballo contends that the
district court should have suppressed evidence of his prior
deportation because he was deprived of due process during the
administrative deportation proceeding. Carballo raises the issue
only to preserve it for Supreme Court review because he concedes
*
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that this opinion should not be published and is not precedent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. 02-20368
-2-
that his argument is foreclosed by United States v. Benitez-
Villafuerte, 186 F.3d 651, 656-60 (5th Cir. 1999).
Carballo also contends that, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), 8 U.S.C. § 1326(b) is
unconstitutional because it does not require a prior felony
conviction to be proved as an element of the offense. Carballo
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he raises the issue to
preserve it for Supreme Court review in light of Apprendi.
Apprendi did not overrule Almendarez-Torres. Apprendi, 530
U.S. at 489-90, 496; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted).
Carballo’s conviction and sentence are AFFIRMED.
Carballo contends, and the Government agrees, that the
judgment contains a clerical error stating that Carballo pleaded
guilty when, in fact, he was convicted after a bench trial on
stipulated facts. The case is REMANDED for correction of this
clerical error. See FED. R. CRIM. P. 36; United States v.
Johnson, 588 F.2d 961, 964 (5th Cir. 1979).
CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF
CLERICAL ERROR IN JUDGMENT.