United States v. Mendez-Paiz ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40410
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO MENDEZ-PAIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1220-ALL
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November 18, 2002
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
Ramiro Mendez-Paiz was convicted of being found in the United
States after having been previously deported, excluded, or removed
following a conviction of an aggravated felony. For the first time
on appeal, he argues 1) that 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000), and 2) that this court should remand for a correction of
1
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that this opinion should not be published and is not precedent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.
the judgment of his conviction, which incorrectly referred to his
conviction offense as attempted reentry by a deported alien.
Mendez-Paiz correctly notes that his challenge to the
constitutionality of 8 U.S.C. § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-40
(1998), but seeks to preserve the issue for further review.
Apprendi did not overrule Almendarez-Torres, and we are bound to
follow Almendarez-Torres. See United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).
The judgment of the district court incorrectly states that
Mendez-Paiz was convicted of attempted illegal reentry as opposed
to being found in the country after having been previously
deported, removed, or excluded following an aggravated felony
conviction. See United States v. Angeles-Mascote, 206 F.3d 529,
531 (5th Cir. 2000). The case is therefore REMANDED for correction
of this clerical error. FED. R. CRIM. P. 36; United States v. Sapp,
439 F.2d 817, 821 (5th Cir. 1971).
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN
JUDGMENT.
2