           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 30, 2009
                                     No. 08-40977
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

RAMON PADILLA-AVILEZ

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 2:08-CR-216-ALL


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ramon Padilla-Avilez (Padilla) appeals his guilty plea conviction for being
illegally present in the United States after having been deported. Padilla argues
for the first time on appeal that the district court erred by imposing a 16-level
crime of violence enhancement to his offense level because the presentence
report (PSR) incorrectly cited U.S.S.G. § 2L1.1(b)(1), rather than § 2L1.2, as the
basis for the enhancement. Padilla does not contend that the prior conviction



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40977

that resulted in the 16-level increase was not a crime of violence, nor does he
challenge the existence of the conviction.
      We review for plain error. See United States v. Garza-Lopez, 410 F.3d 268,
272 (5th Cir. 2005). To show plain error, the appellant must show an error that
is clear or obvious and that affects his substantial rights. United States v. Baker,
538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). If the
appellant makes such a showing, this court has the discretion to correct the
error, but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
      It is evident that the PSR’s reference to Section 2L1.1(b)(1) was merely a
typographical or clerical error. The remedy for such an error is, at best, remand
for correction of the error. See Fed. R. Crim. P. 36. However, because he has not
shown that the error affected his substantial rights, remand is not warranted.
See Baker, 538 F.3d at 332; United States v. Acuna-Chavez, 77 F. App’x 262, 264
(5th Cir. 2003).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Padilla challenges
the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury.           This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
      AFFIRMED.




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