                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS        November 12, 2003
                        FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                            No. 03-40479
                          Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JORGE BARGAS,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                         (B-02-CR-774-1)
                      --------------------

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Jorge Bargas appeals his conviction and

sentence imposed following his guilty plea for possession with

intent to distribute marijuana.    See 21 U.S.C. § 841(b).       Bargas

argues, for the first time on appeal and to preserve the issue for

possible Supreme Court review, that 21 U.S.C. § 841 is facially

unconstitutional in the light of Apprendi v. New Jersey, 530 U.S.

466, 490 (2000).   As Bargas concedes, this issue is foreclosed by

United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).


     *
        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this opinion should not be published and is not precedent except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.
      Bargas argues, also for the first time on appeal, that the

district court erred in calculating his criminal history score,

assessing a total of three criminal history points on the basis of

prior offenses committed when he was 17 years old.                       See U.S.S.G. §

4A1.2(d)(2)(B). The parties agree that the plain error standard of

review governs, and that the district court plainly erred in

assessing the three criminal history points for offenses committed

before Bargas was eighteen years old, because the sentences for the

prior offenses        were   imposed     more     than    five     years    before    the

commencement         of    the     instant       offense.          See     U.S.S.G.     §

4A1.2(d)(2)(B).

      Without the assessment of these three criminal history points,

Bargas would have received a criminal history category of IV,

instead of V.        This, in turn, would have produced an imprisonment

range under the sentencing guidelines of 57 to 71 months, instead

of   the   70   to    87   month    range    used   by    the    district     court    at

sentencing.     See U.S.S.G. Ch.5, Pt. A, Sentencing Table.                   The error

affected    Bargas’s       substantial       rights,     as   it   resulted     in    his

receiving a sentence of 87 months’ imprisonment, a sentence that

exceeded the maximum sentence under Bargas’s appropriate guidelines

sentencing range by 16 months.               See United States v. Aderholt, 87

F.3d 740, 744 (5th Cir. 1996).                   The fairness of the judicial

proceeding was seriously affected because the increase in Bargas’s

sentence was erroneous and substantial.                  See id.     Accordingly, we

vacate Bargas’s sentence and remand the case for resentencing.

                                             2
     Bargas also contends, and the government concedes, that the

written judgment states incorrectly that he was convicted of an

offense under 21 U.S.C. § 841(b)(1)(B), rather than an offense

under 21 U.S.C. § 841(b)(1)(C).    Bargas asks us to remand the case

to the district court for correction of the judgment pursuant to

FED. R. CRIM. P. 36, and the government agrees that a remand for

correction of this “clerical error” would be the proper course.

     Irrespective of the government’s concession on this point, we

are not convinced, based on the record, that the “error” in the

judgment is the sort of mechanical or clerical error that is

subject to correction under Rule 36.         See FED. R. CRIM. P. 36.

Inasmuch as Bargas’s indictment charged him with an offense under

21 U.S.C. § 841(b)(1)(B), and Bargas pleaded guilty as charged in

the indictment, the error in the judgment, if any, is not the kind

that is “clearly a clerical one which should be corrected under

FED. R. CRIM. P. 36].”   Cf. United States v. Sapp, 439 F.2d 817, 821

(5th Cir. 1971).

     AFFIRMED   IN   PART;    VACATED   IN   PART;   AND   REMANDED FOR

RESENTENCING.




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