United States v. Galvan-Duarte ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41468
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GALVAN-DUARTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-661-ALL
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Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
Juan Galvan-Duarte (“Galvan”) appeals the sentencing following
his jury conviction for illegal reentry into the United States
following deportation. Galvan contends that 8 U.S.C. § 1326(b)(2)
is unconstitutional because it treats a prior conviction for an
aggravated felony as a mere sentencing factor and not an element of
the offense. Galvan concedes that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
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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that this opinion should not be published and is not precedent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.
nevertheless seeks to preserve the issue for Supreme Court review
in light of the decision in Apprendi v. New Jersey, 530 U.S. 466
(2000).
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). Consequently, Galvan’s argument is foreclosed. Based
on the above argument, Galvan’s conviction and sentence are
AFFIRMED.
Galvan contends, and the Government concedes, that the written
judgment does not comport with the district court’s oral
pronouncement at sentencing that he should be sentenced to two
years’ supervised release. An oral pronouncement of judgment will
control over the written judgment if the two conflict. United
States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). The written
judgment, which states that Galvan was sentenced to three years’
supervised release, conflicts with the oral pronouncement of two
years’ supervised release. Accordingly, the judgment is VACATED
and the case is REMANDED for the limited purpose of allowing the
district court to amend its written judgment to conform to its oral
judgment at sentencing. See Martinez, 250 F.3d at 942.
JUDGMENT VACATED AND CASE REMANDED FOR AMENDMENT OF JUDGMENT.
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