United States v. Morales-Vega

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 24, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 03-20332
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO MORALES-VEGA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-02-CR-641-1)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges
PER CURIAM:*
Alejandro Morales-Vega (“Morales”) appeals his guilty-plea
conviction for illegal re-entry following deportation. Morales
contends 8 U.S.C. § 1326(b) is unconstitutional in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), claiming a majority of
the Supreme Court feels Almendarez-Torres v. United States, 523
U.S. 224 (1998), was incorrectly decided. Morales acknowledges
that this contention is foreclosed by circuit precedent, but raises
it to preserve it for possible review by the Supreme Court.

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2
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90; see also United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000).
Morales seeks remand pursuant to FED. R. CRIM. P. 36 for
correction of a clerical error in the judgment. The Government
concedes that remand is appropriate because the written judgment
does not reflect that, at sentencing, the district court orally
granted its motion to remit the $100 special assessment.
Accordingly, this action is REMANDED for the sole purpose of
allowing the district court to correct the judgment to reflect that
the $100 special assessment is abated.
AFFIRMED, REMANDED FOR CORRECTION OF CLERICAL ERROR IN JUDGMENT

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