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

(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey,

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(b) is foreclosed by

Almendarez-Torres v. United States,

(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,

(5th Cir. 2000), cert. denied,

(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,

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

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

(5th Cir. 1971).

AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN

JUDGMENT.

2