                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  February 28, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                           No. 06-40198
                         Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

TOMAS ROJAS-GINES,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-520-ALL
                       --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Tomas Rojas-Gines appeals from his guilty plea conviction

and sentence for being an alien unlawfully found in the Unites

States after deportation in violation of 8 U.S.C. § 1326.         Rojas-

Gines argues that the “felony” and “aggravated felony” provisions

of § 1326(b)(1) and (2) are unconstitutional in light of Apprendi

v. New Jersey, 530 U.S. 466 (2000).    His constitutional challenge

is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998).   Although Rojas-Gines contends that

Almendarez-Torres was incorrectly decided and that a majority of

     *
       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this opinion should not be published and is not precedent except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. 06-40198
                                -2-

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi, 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).   Rojas-Gines properly concedes that

his argument is foreclosed by Almendarez-Torres and circuit

precedent, but he raises it here solely to preserve it for

further review.

     Rojas-Gines also argues that the written judgment of

conviction does not accurately reflect the offense to which he

pleaded guilty.   As the Government concedes, the written judgment

describes Rojas-Gines’s offense as attempted reentry of a

deported alien, but the record shows that Rojas-Gines pleaded

guilty to being an alien unlawfully found in the United States

after deportation.   This error is a clerical error subject to

correction pursuant to FED. R. CRIM. P. 36.    See United States v.

Sapp, 439 F.2d 817, 820 (5th Cir. 1971).      Accordingly, we affirm

Rojas-Gines’s conviction and sentence and remand this case to the

district court for correction of the clerical error in the

judgment pursuant to Rule 36.

     AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN

JUDGMENT.
