                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 12, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-20751
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALFREDO SARMIENTO-SANCHEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:04-CR-431-1
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Alfredo Sarmiento-Sanchez (Sarmiento) appeals his guilty

plea conviction and 57-month sentence for illegally reentering

the United States after having been previously deported.

Sarmiento argues that the district court plainly erred by

enhancing his base offense level pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(i) based upon a determination that his Texas

conviction for delivery of a controlled substance was a drug

trafficking offense.



     *
       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this opinion should not be published and is not precedent except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. 05-20751
                                  -2-

     The district court erred by enhancing Sarmiento’s offense

level under § 2L1.2(b)(1)(A)(i) based upon his prior Texas

conviction for delivery of a controlled substance.    See United

States v. Gonzales, ___ F.3d ___, No. 05-41221, 2007 WL 1063993

(5th Cir. Mar. 7, 2007).   As in Gonzales, the district court’s

error is plain, and the sentence must be vacated and the case

remanded for resentencing.

     Sarmiento also challenges the constitutionality of 8 U.S.C.

§ 1326(b).   His constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Sarmiento contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such

arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005).    Sarmiento properly concedes

that his argument is foreclosed in light of Almendarez-Torres and

circuit precedent, but he raises it here to preserve it for

further review.

     Accordingly, the conviction is AFFIRMED.   The sentence is

VACATED and the case REMANDED for resentencing.
