                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT                      August 28, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 05-41497
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FERNANDO TOVAR-ESPINOSA,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 1:05-CR-138
                      --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Fernando Tovar-Espinosa (Tovar) pleaded guilty to one count

of attempting to reenter the United States without permission

after having been deported.    Tovar contends that 8 U.S.C.

§ 1326(b), under which he was convicted, is unconstitutional.

The Government does not seek to invoke the appeal waiver and has

thus waived the issue.     See United States v. Story, 439 F.3d 226,

230-31 (5th Cir. 2006).



     *
        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that this opinion should not be published and is not precedent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. 05-41497
                                -2-

     Tovar’s constitutional challenge to 8 U.S.C. § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Tovar contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), 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).     Tovar properly concedes

that his argument is foreclosed in light of Almendarez-Torres and

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

further review.

     Tovar also asserts that this court should remand for

correction of a clerical error in the judgment pursuant to

Federal Rule of Criminal Procedure 36.    We remand for the limited

purpose of correcting the judgment to reflect that the offense of

conviction was attempted illegal reentry rather than Tovar having

been “found in” the United States illegally.     See United States

v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).

     AFFIRMED; REMANDED FOR THE LIMITED PURPOSE OF CORRECTING

CLERICAL ERROR IN JUDGMENT.
