                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 21, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-40449
                         Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JUAN AREVALO-SANCHEZ, also known as
Javier Cuevas-Karr,

                                      Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 1:05-CR-864
                        --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Juan Arevalo-Sanchez appeals from his guilty plea conviction

and sentence for illegal reentry after deportation and following

a conviction for an aggravated felony, in violation of 8 U.S.C.

§ 1326.   Arevalo-Sanchez’s constitutional challenge to § 1326(b)

is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998).   Although Arevalo-Sanchez contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of


     *
       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this opinion should not be published and is not precedent except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. 06-40449
                                -2-

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).   Arevalo-

Sanchez 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.

     Arevalo-Sanchez contends that his 1993 and 1995 convictions

for simple possession of a controlled substance should not

have been treated as aggravated felonies for purposes of an

eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C).     During

the pendency of this case, the Supreme Court decided Lopez v.

Gonzales, 127 S. Ct. 625, 633 (2006), which held that a state

offense meets the definition of a “‘felony punishable under the

Controlled Substances Act’ only if it proscribes conduct

punishable as a felony under that federal law.”   In the light of

Lopez, Arevalo-Sanchez’s argument has merit.   See United States

v. Estrada-Mendoza, 475 F.3d 258, No. 05-41627, 2007 WL 6583, at

*2 (5th Cir. Jan. 3, 2007).   Arevalo-Sanchez’s unopposed motion

to remand his case for resentencing is GRANTED.   Arevalo-

Sanchez’s conviction is AFFIRMED; Arevalo-Sanchez’s sentence is

VACATED and REMANDED for resentencing in accordance with Lopez.

We express no opinion on the issue whether the § 2L1.2(b)(1)(C)

enhancement was appropriate because Arevalo-Sanchez’s 1995

possession offense qualified as “recidivist possession.”     See

Lopez, 127 S. Ct. at 630 n.6; United States v. Sanchez-

Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005).
