United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS September 18, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40374
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RODRIGUEZ, also known as
Jose Gonzalez Gonzalez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-02-CR-600-1)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Rodriguez pleaded guilty to attempted illegal reentry
following deportation. He contends, for the first time on appeal,
that 8 U.S.C. § 1326(b) is unconstitutional in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Rodriguez concedes
this contention is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998); he raises the issue to preserve it for
*
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that this opinion should not be published and is not precedent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.
Supreme Court review. See United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000).
Rodriguez also contends, and the Government concedes, that the
written judgment states incorrectly that he was convicted of being
found in the United States rather than of attempted illegal
reentry. He asks that the district court amend the written
judgment pursuant to FED. R. CRIM. P. 36. The record reflects that
Rodriguez pleaded guilty to attempted illegal reentry.
Accordingly, that part of the judgment is VACATED and the case is
REMANDED for the limited purpose of allowing the district court to
amend the written judgment to reflect the proper offense of
conviction.
AFFIRMED IN PART;
VACATED IN PART; AND REMANDED FOR AMENDMENT OF JUDGMENT
2