                                                                                       United States Court of Appeals
                                                                                                Fifth Circuit
                                                                                             F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                               March 7, 2006
                                  FOR THE FIFTH CIRCUIT
                                                                                          Charles R. Fulbruge III
                                                                                                  Clerk


                                           No. 04-41390
                                         Summary Calendar



UNITED STATES OF AMERICA,

                                                                                        Plaintiff-
                                                         Appellee,

                                                versus

MARCO ANTONIO MARTIN-PARADA,

                                                                                      Defendant-
                                                         Appellant.

                      -------------------------------------------------------------
                          Appeal from the United States District Court
                                 for the Southern District of Texas
                                   USDC No. 5:04-CR-659-ALL
                      -------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Marco Antonio Martin-Parada (Martin) appeals his sentence following his guilty plea

conviction for illegal reentry. He argues that the “felony” and “aggravated felony” provisions of

8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000). Martin’s constitutional challenge is foreclosed by Almendarez-Torres v. United States,



       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
523 U.S. 224, 235 (1998). Although Martin contends that Almendarez-Torres was incorrectly

decided and that a majority of t he 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). Martin 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.

        Martin also argues that the district court reversibly erred under United States v. Booker, 543

U.S. 220 (2005), by sentencing him pursuant to a mandatory application of the Sentencing

Guidelines. The Government concedes that Martin has preserved this issue for appeal. The

Government, however, has not shown beyond a reasonable doubt that the error was harmless. See

United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Accordingly, Martin’s sentence is

VACATED, and this case is REMANDED for resentencing.

        CONVICTION          AFFIRMED;        SENTENCE         VACATED;            REMANDED      FOR

RESENTENCING.
