United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 9, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40026
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO GUTIERREZ-GARRIDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1001-ALL
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Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Alfredo Gutierrez-Garrido (“Gutierrez”) appeals his
guilty-plea conviction and sentence for violating 8 U.S.C.
§ 1326(a) and (b)(1) by illegally reentering the United States,
without permission, following his conviction for a felony and
subsequent deportation.
For the first time on appeal, Gutierrez argues that
8 U.S.C. § 1326(b) is unconstitutional because it treats a prior
*
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that this opinion should not be published and is not precedent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. 03-40026
-2-
conviction for a felony or aggravated felony as a sentencing factor
and not as an element of the offense. He asks us to vacate his
conviction and sentence, reform the judgment to reflect a
conviction only under 8 U.S.C. § 1326(a), and remand his case for
resentencing.
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Gutierrez acknowledges that his argument is foreclosed by
Almendarez-Torres, but asserts that the decision has been cast into
doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He
seeks to preserve his argument for further review.
Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; 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). Gutierrez’s conviction and sentence are
therefore AFFIRMED.
The Government concedes that the judgment incorrectly
reflects conviction under 8 U.S.C. § 1326(a) & (b)(2), which
requires deportation subsequent to conviction for an aggravated
felony. Both parties agree that the offense of conviction was
No. 03-40026
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illegal reentry following deportation subsequent to conviction for
a felony, not an aggravated felony, and that the statutory basis is
8 U.S.C. § 1326(a) & (b)(1). Accordingly, remand is appropriate
pursuant to FED. R. CRIM. P. 36 for the limited purpose of correcting
the judgment to reflect the appropriate statutory basis. See,
e.g., United States v. Johnson, 588 F.2d 961, 964 (5th Cir. 1979).
REMANDED FOR LIMITED PURPOSE OF CORRECTING CLERICAL ERROR
IN JUDGMENT.