                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS           April 24, 2003
                       FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                            No. 02-20368
                        Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

OMAR CARLOS CARBALLO-BALDERAS,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-01-CR-824-ALL
                      --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Omar Carlos Carballo-Balderas (Carballo) appeals his

conviction and sentence for illegal reentry after deportation in

violation of 8 U.S.C. § 1326.    Carballo contends that the

district court should have suppressed evidence of his prior

deportation because he was deprived of due process during the

administrative deportation proceeding.    Carballo raises the issue

only to preserve it for Supreme Court review because he concedes



     *
        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that this opinion should not be published and is not precedent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. 02-20368
                                  -2-

that his argument is foreclosed by United States v. Benitez-

Villafuerte, 186 F.3d 651, 656-60 (5th Cir. 1999).

       Carballo also contends that, in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), 8 U.S.C. § 1326(b) is

unconstitutional because it does not require a prior felony

conviction to be proved as an element of the offense.      Carballo

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he raises the issue to

preserve it for Supreme Court review in light of Apprendi.

       Apprendi did not overrule Almendarez-Torres.    Apprendi, 530

U.S. at 489-90, 496; 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).

       Carballo’s conviction and sentence are AFFIRMED.

       Carballo contends, and the Government agrees, that the

judgment contains a clerical error stating that Carballo pleaded

guilty when, in fact, he was convicted after a bench trial on

stipulated facts.     The case is REMANDED for correction of this

clerical error.     See FED. R. CRIM. P. 36; United States v.

Johnson, 588 F.2d 961, 964 (5th Cir. 1979).

       CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF

CLERICAL ERROR IN JUDGMENT.
