                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 8, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-40870
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FRANCISCO JAVIER ARAGUZ-BRIONES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-201-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Francisco Javier Araguz-Briones appeals his guilty-plea

conviction and 75-month sentence for illegal reentry after

deportation, a violation of 8 U.S.C. § 1326.1   Araguz’s


     *
       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this opinion should not be published and is not precedent except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.
     1
        We reject the government’s contention that the waiver of
appeal provision in Araguz’s plea agreement bars this appeal. At
rearraignment, the magistrate judge, in the context of addressing
the waiver of appeal provision, specifically advised Araguz that
he “could still appeal from an illegal sentence.” Under such
circumstances, the appeal waiver was not knowing and voluntary.
See, e.g., United States v. Cuellar, 151 Fed. Appx. 352, 353,
2005 WL 2769527 (5th Cir. 2005) (unpublished); United States v.
Mendez, 153 Fed. Appx. 917, 918, 2005 WL 2404755 (5th Cir. 2005)
                             No. 04-40870
                                  -2-

constitutional challenge to 8 U.S.C. § 1326 is foreclosed by

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

Although Araguz 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).    Araguz 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.   Thus, we AFFIRM Araguz’s conviction.

     Araguz contends that his sentence must be vacated because he

was sentenced pursuant to the mandatory sentencing guidelines

regime that was held to be unconstitutional in United States v.

Booker, 543 U.S. 220 (2005).    The sentencing transcript is devoid

of evidence that the district court would have imposed the same

sentence under an advisory regime, and, therefore, the Government

has not met its burden of establishing beyond a reasonable doubt

that the district court’s error was harmless.    See United States

v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).    Accordingly,

Araguz’s sentence is VACATED, and the case is REMANDED for

further proceedings.     See id. at 466.




(unpublished).
