                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                      FILED
                                                                      April 9, 2004
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT         Charles R. Fulbruge III
                                                               Clerk


                                No. 03-41212
                              Summary Calendar




UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

PEDRO BALDERAS-ROMAN,

                                           Defendant-Appellant.




                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                          No. B-03-CR-365-1
                        --------------------




Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

      Pedro Balderas-Roman appeals his guilty-plea conviction and

sentence for violating 8 U.S.C. § 1326(a) and (b)(2) by attempting

to enter the United States without permission following his convic-

tion of an aggravated felony and subsequent deportation.                  For the


      *
        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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
                           No. 03-41212
                                -2-

first time on appeal, Balderas argues that 8 U.S.C. § 1326(b) is

unconstitutional on its face because it treats a prior conviction

of a felony or aggravated felony as a sentencing factor and not as

an element of the offense. He acknowledges, however, that this ar-

gument is contrary to Almendarez-Torres v. United States, 523 U.S.

224 (1998), which holds that enhanced penalties under § 1326(b) are

sentencing provisions, not elements of a separate offense. Appren-

di v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-

Torres, and we must follow Almendarez-Torres “unless and until the

Supreme Court determines to overrule it.” United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000).   Balderas’s conviction and sen-

tence are therefore AFFIRMED.

     Balderas also asserts that we should remand for correction of

a clerical error in the judgment pursuant to Federal Rule of Crim-

inal Procedure 36.   Because this argument does not fall within the

scope of Balderas’s sentence-appeal waiver, we remand for the lim-

ited purpose of correcting the judgment to reflect that the offense

of conviction was attempted illegal reentry rather than being

“found in” the United States illegally.      See United States v.

Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).

     AFFIRMED; REMANDED FOR THE LIMITED PURPOSE OF CORRECTING

CLERICAL ERROR IN JUDGMENT.
