United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-41497
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO TOVAR-ESPINOSA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-138
--------------------
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Fernando Tovar-Espinosa (Tovar) pleaded guilty to one count
of attempting to reenter the United States without permission
after having been deported. Tovar contends that 8 U.S.C.
§ 1326(b), under which he was convicted, is unconstitutional.
The Government does not seek to invoke the appeal waiver and has
thus waived the issue. See United States v. Story, 439 F.3d 226,
230-31 (5th Cir. 2006).
*
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that this opinion should not be published and is not precedent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. 05-41497
-2-
Tovar’s constitutional challenge to 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Tovar 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). Tovar 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.
Tovar 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 Tovar 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.