United States v. Hernandez-Gainzar

*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this opinion should not be published and is not precedent except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
September 2, 2003
Charles R. Fulbruge III
Clerk
REVISED SEPTEMBER 10, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40212
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SILVESTRE HERNANDEZ-GAINZAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-630-1
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Silvestre Hernandez-Gainzar appeals his guilty-plea conviction
and sentence for violating 8 U.S.C. § 1326(a) and (b)(2) by
attempting to enter the United States without permission following
his conviction for an aggravated felony and subsequent deportation.
For the first time on appeal, Hernandez argues that § 1326(b) is
unconstitutional because it treats a prior conviction for a felony

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1 523 U.S. 224 (1998).
2 530 U.S. 466 (2000).
3 United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
4 See United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th
Cir. 2000).
2
or aggravated felony as a sentencing factor and not as an element
of the offense. However, he acknowledges that this argument is
contrary to Almendarez-Torres v. United States,1 in which the
Supreme Court held that enhanced penalties under § 1326(b) are
sentencing provisions, not elements of a separate offense. As we
have noted, Apprendi v. New Jersey2 did not overrule the Court’s
holding in Almendarez-Torres, and we must follow Almendarez-Torres
“unless and until the Supreme Court determines to overrule it.”3
Hernandez’s conviction and sentence are therefore AFFIRMED.
Hernandez also asserts that we should remand his case to the
district court for correction of a clerical error in the judgment.
The Government concedes that remand is appropriate pursuant to
Federal Rule of Criminal Procedure 36 for the limited purpose of
correcting the judgment to reflect that the offense of conviction
was attempted illegal reentry rather than being “found in” the
United States illegally.4
AFFIRMED; REMANDED FOR THE LIMITED PURPOSE OF CORRECTING
CLERICAL ERROR IN JUDGMENT.

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