                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                       F I L E D
                        UNITED STATES COURT OF APPEALS                September 18, 2003
                             FOR THE FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                   No. 03-40374
                                 Summary Calendar


                             UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

                        JOSE RODRIGUEZ, also known as
                           Jose Gonzalez Gonzalez,

                                                         Defendant-Appellant.


               Appeal from the United States District Court
                    for the Southern District of Texas
                              (B-02-CR-600-1)


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

       Jose Rodriguez pleaded guilty to attempted illegal reentry

following deportation.          He contends, for the first time on appeal,

that 8 U.S.C. § 1326(b) is unconstitutional in the light of

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

this       contention   is    foreclosed   by   Almendarez-Torres     v.   United

States, 523 U.S. 224 (1998); he raises the issue to preserve it for



       *
           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that this opinion should not be published and is not precedent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.
Supreme Court review.       See United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000).

     Rodriguez also contends, and the Government concedes, that the

written judgment states incorrectly that he was convicted of being

found in    the   United    States   rather       than    of    attempted    illegal

reentry.      He asks that the district court amend the written

judgment pursuant to FED. R. CRIM. P. 36.               The record reflects that

Rodriguez     pleaded      guilty    to         attempted       illegal     reentry.

Accordingly, that part of the judgment is VACATED and the case is

REMANDED for the limited purpose of allowing the district court to

amend the     written   judgment     to       reflect   the    proper     offense   of

conviction.

                                                              AFFIRMED IN PART;

       VACATED IN PART; AND REMANDED FOR AMENDMENT OF JUDGMENT




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