IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 8, 2007
No. 06-41708
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VALENTIN LOPEZ-ALVAREZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-574-ALL
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Valentin Lopez-Alvarez
raises arguments that are foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision
and not a separate criminal offense. United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
*
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should not be published and is not precedent except under the limited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. 06-41708
Lopez-Alvarez also requests a remand to the district court for the limited
purpose of correcting the judgment under FED. R. CRIM. P. 36 to reflect that he
pleaded guilty to attempted illegal reentry into the United States. The
Government joins in Lopez-Alvarez’s request that we remand for correction of
the clerical error. The Government’s motion for summary affirmance is granted,
and the judgment of the district court is affirmed. We remand to the district
court with an instruction to correct the judgment pursuant to FED. R. CRIM. P. 36
to reflect that Lopez-Alvarez pleaded guilty to attempted reentry of a deported
alien.
AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE GRANTED;
REMANDED with instruction.
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