                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 25, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-41266
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FRANCISCO MENJIVAR-HERRERA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-466-ALL
                      --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Francisco Menjivar-Herrera appeals from a guilty-plea

conviction for re-entry of a deported alien in violation of

8 U.S.C. § 1326.   Menjivar-Herrera argues that the written

judgment fails to reflect the court’s oral pronouncement at

sentencing that he be placed in a prison medical facility.        As

Menjivar-Herrera concedes, this issue is now moot because

the court has amended the judgment under FED. R. CRIM. P. 36 to

reflect the special condition for incarceration.

     *
        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that this opinion should not be published and is not precedent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. 02-41266
                                 -2-

     Menjivar-Herrera also argues for the first time on appeal

that 8 U.S.C. § 1326(b)(1)&(2) are unconstitutional because

they treat a prior conviction for an aggravated felony as a

mere sentencing factor and not as an element of the offense.

Menjivar-Herrera concedes that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

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; see also United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000).

     AFFIRMED.
