                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 17, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-41112
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAFAEL GUTIERREZ-RAMIREZ,
                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 1:06-CR-175
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     Rafael Gutierrez-Ramirez appeals his guilty-plea conviction

and sentence for illegal reentry following deportation in

violation of 8 U.S.C. § 1326.   He challenges the

constitutionality of § 1326(b)’s treatment of prior felony and

aggravated felony convictions as sentencing factors rather than

as elements of the offense that must be found by a jury in light

of Apprendi v. New Jersey, 530 U.S. 466 (2000).

     Gutierrez-Ramirez’s constitutional challenge is foreclosed

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


     *
       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this opinion should not be published and is not precedent except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. 06-41112
                                -2-

Although Gutierrez-Ramirez contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi, 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).   Gutierrez-Ramirez 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.

     Gutierrez-Ramirez also contends that the district court

erred when it characterized his prior state felony conviction for

simple possession of marijuana as an aggravated felony for

purposes of U.S.S.G. § 2L1.2(b)(1)(C).    We review Gutierrez-

Ramirez’s challenge to the district court’s application of the

Sentencing Guidelines de novo.   See United States v. Villegas,

404 F.3d 355, 359 (5th Cir. 2005).

     In light of the Supreme Court’s recent decision in Lopez v.

Gonzales, 127 S. Ct. 625 (2006), Gutierrez-Ramirez’s argument has

merit.   See United States v. Estrada-Mendoza, 475 F.3d 258, 259-

61 (5th Cir. 2007).   Accordingly, Gutierrez-Ramirez’s sentence is

vacated, and the case is remanded for resentencing in light of

Lopez.

     CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR

RESENTENCING.
