United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-41433
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUCIOS LIMONES-ALVARADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-96-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Lucios Limones-Alvarado (Limones) pleaded guilty to one
count of attempting to reenter the United States without
permission after having been deported. Limones contends that
8 U.S.C. § 1326(b), under which he was convicted, is
unconstitutional.
Limones’s constitutional challenge to 8 U.S.C.
*
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that this opinion should not be published and is not precedent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. 05-41433
-2-
§ 1326(b) is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Limones contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Limones
properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
Limones also asserts that this court should remand for
correction of a clerical error in the judgment pursuant to
Federal Rule of Criminal Procedure 36. We remand for the limited
purpose of correcting the judgment to reflect that the offense of
conviction was attempted illegal reentry rather than Limones
having been “found in” the United States illegally. See United
States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).
AFFIRMED; REMANDED FOR THE LIMITED PURPOSE OF CORRECTING
CLERICAL ERROR IN JUDGMENT.