                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 17, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 05-11052
                           Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JAVIER HUERTA, also known as Big Boy,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:03-CR-369-4
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Javier Huerta appeals his guilty-plea conviction for

conspiracy to distribute and possess with intent to distribute

100 kilograms or more of marijuana.    He argues that the written

judgment of conviction does not accurately reflect the offense to

which he pleaded guilty.

     As the Government has explicitly declined to invoke the

appeal waiver regarding the issue raised by Huerta, the appeal

waiver is not binding on this appeal.     See United States v.

Story, 439 F.3d 226, 231 (5th Cir. 2006).

     *
       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this opinion should not be published and is not precedent except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. 05-11052
                                 -2-

     As the Government concedes, the written judgment describes

the nature of Huerta’s offense as conspiracy to distribute and

possess with intent to distribute five kilograms or more of

cocaine and 100 kilograms or more of marijuana while the record

shows that Huerta pleaded guilty only to conspiracy to distribute

and possess with intent to distribute 100 kilograms or more of

marijuana.   This error is a clerical error subject to correction

pursuant to FED. R. CRIM. P. 36.   See United States v. Sapp, 439

F.2d 817, 821 (5th Cir. 1971).     Accordingly, we affirm Huerta’s

conviction and sentence and remand this case to the district

court for correction of the clerical error in the judgment

pursuant to Rule 36.

     AFFIRMED; MOTION TO GRANT RELIEF REQUESTED GRANTED; REMANDED

FOR CORRECTION OF CLERICAL ERROR IN JUDGMENT.
