                                                        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.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-661-ALL
                      --------------------

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


     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that this opinion should not be published and is not precedent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.
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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