                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS              September 9, 2003

                        FOR THE FIFTH CIRCUIT                    Charles R. Fulbruge III
                                                                         Clerk


                              No. 03-40026
                            Summary Calendar



UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

versus

ALFREDO GUTIERREZ-GARRIDO,

                                       Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-1001-ALL
                       --------------------

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

          Alfredo    Gutierrez-Garrido       (“Gutierrez”)    appeals      his

guilty-plea    conviction   and   sentence     for   violating     8   U.S.C.

§ 1326(a) and (b)(1) by illegally reentering the United States,

without permission, following his conviction for a felony and

subsequent deportation.

          For the first time on appeal, Gutierrez argues that

8 U.S.C. § 1326(b) is unconstitutional because it treats a prior

     *
        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that this opinion should not be published and is not precedent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. 03-40026
                                     -2-

conviction for a felony or aggravated felony as a sentencing factor

and not as an element of the offense.              He asks us to vacate his

conviction    and   sentence,       reform   the   judgment     to   reflect    a

conviction only under 8 U.S.C. § 1326(a), and remand his case for

resentencing.

            In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses.       The Court further held that the sentencing

provisions do not violate the Due Process Clause.               Id. at 239-47.

Gutierrez    acknowledges     that     his    argument    is    foreclosed     by

Almendarez-Torres, but asserts that the decision has been cast into

doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).                     He

seeks to preserve his argument for further review.

            Apprendi    did   not     overrule     Almendarez-Torres.        See

Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”      Dabeit, 231 F.3d at 984 (internal quotation marks and

citation    omitted).     Gutierrez’s        conviction   and    sentence    are

therefore AFFIRMED.

            The Government concedes that the judgment incorrectly

reflects conviction under 8 U.S.C. § 1326(a) & (b)(2), which

requires deportation subsequent to conviction for an aggravated

felony.     Both parties agree that the offense of conviction was
                            No. 03-40026
                                 -3-

illegal reentry following deportation subsequent to conviction for

a felony, not an aggravated felony, and that the statutory basis is

8 U.S.C. § 1326(a) & (b)(1).    Accordingly, remand is appropriate

pursuant to FED. R. CRIM. P. 36 for the limited purpose of correcting

the judgment to reflect the appropriate statutory basis.        See,

e.g., United States v. Johnson, 588 F.2d 961, 964 (5th Cir. 1979).

         REMANDED FOR LIMITED PURPOSE OF CORRECTING CLERICAL ERROR

IN JUDGMENT.
