               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-40410
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                                                               versus

                        RAMIRO MENDEZ-PAIZ,

                                                 Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-01-CR-1220-ALL
                       --------------------
                         November 18, 2002

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

     Ramiro Mendez-Paiz was convicted of being found in the United

States after having been previously deported, excluded, or removed

following a conviction of an aggravated felony. For the first time

on appeal, he argues 1) that 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000), and 2) that this court should remand for a correction of




     1
        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that this opinion should not be published and is not precedent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.
the judgment of his conviction, which incorrectly referred to his

conviction offense as attempted reentry by a deported alien.

      Mendez-Paiz      correctly           notes       that   his    challenge      to    the

constitutionality       of      8    U.S.C.        §    1326(b)      is    foreclosed     by

Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-40

(1998), but    seeks       to   preserve          the    issue     for    further   review.

Apprendi did not overrule Almendarez-Torres, and we are bound to

follow Almendarez-Torres.             See United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).

      The judgment of the district court incorrectly states that

Mendez-Paiz was convicted of attempted illegal reentry as opposed

to   being   found    in    the      country       after      having      been   previously

deported, removed, or excluded following an aggravated felony

conviction.    See United States v. Angeles-Mascote, 206 F.3d 529,

531 (5th Cir. 2000). The case is therefore REMANDED for correction

of this clerical error.             FED. R. CRIM. P. 36; United States v. Sapp,

439 F.2d 817, 821 (5th Cir. 1971).

      AFFIRMED;      REMANDED        FOR    CORRECTION        OF    CLERICAL      ERROR   IN

JUDGMENT.




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