                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 16, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40469
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ROGELIO DE LA CRUZ-GONZALEZ,

                                     Defendant-Appellant.


                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:03-CR-1644-ALL
                       --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Rogelio de la Cruz-Gonzalez has appealed his guilty-plea

conviction of attempting to enter the United States illegally

following deportation.   De la Cruz-Gonzalez contends that the

“felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000).   De la Cruz-Gonzalez contends

also that his sentence was imposed illegally in light of Blakely

v. Washington, 124 S. Ct. 2531 (2004).   He concedes that these

     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-40469
                                 -2-

arguments are foreclosed.     See Almendarez-Torres v. United

States, 523 U.S. 224 (1998); United States v. Pineiro, 377 F.3d

464, 465–66 (5th Cir. 2004), petition for cert. filed (U.S. July

14, 2004) (No. 04-5263); United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000).   He asserts that Almendarez-Torres has been

called into doubt by Apprendi and Blakely.      He seeks to preserve

the issues for possible Supreme Court review.

     De la Cruz-Gonzalez contends, and the Government concedes,

that the judgment recites incorrectly that de la Cruz-Gonzalez

was convicted of illegal reentry following deportation, instead

of an attempt to commit that offense.      The case must be remanded

to the district court so that the judgment may be reformed to

reflect the correct offense of conviction.      See United States v.

Powell, 354 F.3d 362, 371-72 (5th Cir. 2003); FED. R. CRIM. P. 36.

     AFFIRMED and REMANDED.
