                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                    REVISED SEPTEMBER 10, 2003
                                                            September 2, 2003
               IN THE UNITED STATES COURT OF APPEALS
                                                         Charles R. Fulbruge III
                                                                 Clerk
                       FOR THE FIFTH CIRCUIT



                           No. 03-40212
                         Summary Calendar



UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

                                versus

SILVESTRE HERNANDEZ-GAINZAR,

          Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-02-CR-630-1


Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Silvestre Hernandez-Gainzar appeals his guilty-plea conviction

and sentence for violating 8 U.S.C. § 1326(a) and (b)(2) by

attempting to enter the United States without permission following

his conviction for an aggravated felony and subsequent deportation.

For the first time on appeal, Hernandez argues that § 1326(b) is

unconstitutional because it treats a prior conviction for a felony

     *
      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this opinion should not be published and is not precedent except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.
or aggravated felony as a sentencing factor and not as an element

of the offense.     However, he acknowledges that this argument is

contrary to Almendarez-Torres v. United States,1 in which the

Supreme Court held that enhanced penalties under § 1326(b) are

sentencing provisions, not elements of a separate offense.    As we

have noted, Apprendi v. New Jersey2 did not overrule the Court’s

holding in Almendarez-Torres, and we must follow Almendarez-Torres

“unless and until the Supreme Court determines to overrule it.”3

Hernandez’s conviction and sentence are therefore AFFIRMED.

     Hernandez also asserts that we should remand his case to the

district court for correction of a clerical error in the judgment.

The Government concedes that remand is appropriate pursuant to

Federal Rule of Criminal Procedure 36 for the limited purpose of

correcting the judgment to reflect that the offense of conviction

was attempted illegal reentry rather than being “found in” the

United States illegally.4

     AFFIRMED; REMANDED FOR THE LIMITED PURPOSE OF CORRECTING

CLERICAL ERROR IN JUDGMENT.




     1
         523 U.S. 224 (1998).
     2
         530 U.S. 466 (2000).
     3
         United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
     4
      See United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th
Cir. 2000).

                                  2
