                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                            No. 00-50871


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                               VERSUS


      MIGUEL ANGEL VENEGAS-MORENO, also known as Enrique Trejo

                                                 Defendant-Appellant.




            Appeal from the United States District Court
                  For the Western District of Texas
                          (99-CR-1786-DB)
                          August 29, 2001


Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*

      On November 23, 1999, Appellant Miguel Angel Venegas-Moreno

attempted to enter the United States at the Paso del Norte Port of

Entry.   After being referred to a secondary inspector, Venegas-

Moreno admitted that he was an alien to the United States and



  *
   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opinion should not be published and is not precedent except under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.

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citizen of Mexico.       On December 14, 1999, Venegas-Moreno was

indicted and charged with being “an alien, who had previously been

excluded, deported, and removed from the United States on or about

April 22, 1998, and who had not received the consent of the

Attorney General of the United States to re-apply for admission,

attempted to enter, entered and was found in the United States in

the Western District of Texas, in violation of Title 8, United

States Code, Section 1326.”         On May 22, 2000, Venegas-Moreno

pleaded guilty, and on August 7, 2000, the district court entered

a judgment convicting Venegas-Moreno of the crime of “Illegal re-

entry.”      Because of the defendant’s prior felony conviction,

Venegas-Moreno’s penalty was enhanced, and he was sentenced to

sixty months’ imprisonment.

     On September 8, 2000, the district court appointed counsel to

represent Venegas-Moreno on appeal, and Venegas-Moreno filed a

Notice of Appeal.       On appeal, Venegas-Moreno argues that the

factual basis is insufficient to support his guilty plea and that

his sentence violated due process because it exceeded the statutory

maximum.



The Plea

     The government contends that the indictment, in addition to

charging Venegas-Moreno with entering and being found in the United

States, also charges that he “attempted to enter” the country. The

government    also   correctly   notes   that   although   the   indictment

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alleges several offenses in the conjunctive, “a conviction thereon

will stand if proof of one of more of the means of commission is

sufficient.”    United States v. Harvard, 103 F.3d 412, 420 (5th Cir.

1997) (quoting Fields v. United States, 408 F.2d 885, 887 (5th Cir.

1969)); United States v. Johnson, 87 F.3d 133, 136 n.2 (5th Cir.

1996)(citing United States v. Pigrum, 922 F.2d 249, 253 (5th Cir.

1991)).     Because the indictment contains a charge, “attempted

illegal reentry,” which is supported by the factual basis, the

government contends that judgment against Venegas-Moreno is sound.

     The issue before this court, however, is not whether Venegas-

Moreno’s indictment is sufficient.    The issue, instead, is whether

there exists sufficient evidence in the factual basis to support

Venegas-Moreno’s plea of guilty to the crime of which he was

convicted--Illegal Reentry.

     “A guilty plea is insufficient in itself to support a criminal

conviction.”    United States v. Adams, 961 F.2d 505, 508 (5th Cir.

1992).    “A trial court cannot accept a guilty plea unless there is

a sufficient factual basis for that plea.”         United States v.

Angeles-Mascots, 206 F.3d 529, 530 (5th Cir. 2000) (citing Fed. R.

Crim. P. 11(f)).   “This factual basis must appear in the record and

be sufficiently specific to allow the court to determine whether

the defendant’s conduct is within the ‘ambit of the statute’s

prohibitions.’”    Id. (quoting United States v. Gobert, 139 F.3d

436, 439 (5th Cir. 1998)).

     The record is clear that Venegas-Moreno pleaded guilty to the

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crime of “Illegal Reentry.”    Although Venegas-Moreno’s indictment

includes a charge of attempting to reenter, the specific crime

listed in the judgment and the specific crime described in the Pre-

Sentencing Report is “Illegal Reentry.”      The district court at

rearraignment stated that Venegas-Moreno was charged with illegal

reentry, inquired whether Venegas-Moreno was going to plead guilty

to illegal reentry after deportation, and stated that Venegas-

Moreno had been indicted for illegal reentry after deportation. In

response to the district court’s question, “To the single-count

Indictment accusing you of illegal reentry after deportation, how

[d]o you plead, sir, guilty or not guilty?” Venegas-Moreno replied,

“Guilty.”

     The factual basis presented by the government as support for

Venegas-Moreno’s guilty plea, however, supports only a charge of

attempted illegal reentry.    The factual basis demonstrates that on

November 23, 1999, Venegas-Moreno applied for admission into the

United States at the Paso del Norte Port of Entry in El Paso,

Texas, by making a claim of United States citizenship; that after

being referred to a secondary inspector, Venegas-Moreno admitted

that he was not a United States citizen but an alien to the United

States and a citizen and national of Mexico; that he had been

previously removed from the United States; that he had not received

the consent of the Attorney General to reapply for admission; and

that he had been convicted of an aggravated felony in July of 1984.

     Facts sufficient to support a guilty plea to a crime of

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“attempted reentry” are not necessarily sufficient to support a

charge of “illegal reentry.”       Angeles-Mascote, 206 F.3d at 530-31.

Because the factual basis presented by the government in Angeles-

Mascote revealed that the defendant had only approached immigration

officials and presented to them an alien registration card, this

court concluded that the district court erred in accepting the

defendant’s guilty plea without a sufficient factual basis. Id. at

532. Thus, the identical factual basis presented by the government

here does not support Venegas-Moreno’s guilty plea to the crime of

“Illegal Reentry.”

     The record reflects that the defendant fully acknowledged

having committed acts constituting the crime of “attempted illegal

reentry,”   and   by   pleading    guilty   to   Count   1,   Venegas-Moreno

necessarily   pleaded     guilty    to    “attempted     illegal   reentry.”

Accordingly, Venegas-Moreno’s conviction and sentence are VACATED,

and the case is REMANDED for the correction of the judgment of

conviction and the resentencing          of the defendant on the basis of

the new judgment of conviction.



Apprendi Claim

     The defendant also argues that because his sentence was

enhanced beyond the statutory maximum based upon an issue not

presented in the indictment, i.e., a prior conviction, his sentence

violates Apprendi v. New Jersey, 530 U.S. 466 (2000).



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         Apprendi, 530 U.S. at 490, requires that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted

to   a    jury,   and   proved   beyond   a   reasonable   doubt.”   Prior

convictions are excluded under Apprendi by Almendarez-Torres v.

United States, 523 U.S. 224 (1998).           Because the Court in Apprendi

expressly declined to overrule Almendarez-Torres, see Apprendi, 530

U.S. at 490; see also United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001), 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 and citation omitted).           In fact, the defendant

concedes that his argument is foreclosed by Almendarez-Torres, but

states that he makes it on appeal to preserve the issue for Supreme

Court review.      Accordingly, relief on this issue is DENIED.




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