                                                                                     United States Court of Appeals
                                                                                              Fifth Circuit
                                                                                            F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                             March 8, 2007
                                  FOR THE FIFTH CIRCUIT
                                                                                        Charles R. Fulbruge III
                                                                                                Clerk


                                           No. 06-20253
                                         Summary Calendar


UNITED STATES OF AMERICA,

                                                                                       Plaintiff-
                                                          Appellee,

                                                 versus

JAIME SOLIS-CAMPUZANO,
also known as Jaime Solis-Campozano,
also known as Jaime Solis-Campusano,
also known as Javier Soliz-Camposano,
also known as Elias Gaona-Vargas,
also known as Jaime Gaona-Vargas,
also known as Eduardo Alejandro Berrones-Garza,

                                                                                     Defendant-
                                                          Appellant.

                        ----------------------------------------------------------
                           Appeal from the United States District Court
                                 for the Southern District of Texas
                                     USDC No. 4:05-CR-412-1
                        ----------------------------------------------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

       Jamie Solis-Campuzano (Solis) appeals his guilty-plea conviction and sentence for violating

8 U.S.C. § 1326(a) and (b) by re-entering the United States without permission after having been

       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
convicted of an aggravated felony and deported. Solis was also charged with unlawful possession

of a firearm by an illegal alien.

        Solis challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated

felony convictions as sentencing factors rather than elements of the offense that must be found by a

jury, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Solis’s constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Solis

contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi, we have repeatedly rejected such arguments

on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d

268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Solis properly concedes that his argument

is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it

for further review.

        Solis also argues that the Government breached the terms of the plea agreement by failing to

move to dismiss the firearm charge at his sentencing hearing. The Government concedes that it

agreed to dismiss the firearm charge and joins Solis in seeking remand. However, the written

judgment entered by the district court indicated that the “Count(s) remaining is dismissed on the

motion of the United States.”

        Where, as here, there was no objection to the breach of a plea agreement, the issue is

reviewed for plain error. United States v. Brown, 328 F.3d 787, 790 (5th Cir. 2003). “‘The law is

well settled that if there were any conflict between the oral pronouncement of judgment and the

written judgment itself, the terms of the oral pronouncement would control,’” but this court will allow




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a written judgment to clarify “an ambiguous oral sentence.” Schurmann v. United States, 658 F.2d

389, 391 (5th Cir. 1981) (quoting Scott v. United States, 434 F.2d 11, 20 (5th Cir. 1970)).

       Like the oral judgment at issue in Schurmann, the oral judgment of the district court in this

case is silent on the point at issue and is therefore ambiguous. See id. at 389-90. The added detail

provided by the written judgment clearly demonstrates that the district court intended that the firearm

charge be “dismissed on the motion of the United States,” especially in light of the other evidence in

the record that the Government promised to dismiss the firearm charge, as it now concedes. See

Shurmann, 658 F.2d at 390-91. Because the firearm count against Solis has already been dismissed

by the district court, there was no plain error, see Brown, 328 F.3d at 790, and remand is not

necessary. Schurmann, 658 F.2d at 390-91.

       AFFIRMED.




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