                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 2, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-41578
                           Summary Calendar



                     UNITED STATES OF AMERICA,

                         Plaintiff-Appellee,

                                versus

                 RICARDO MANUEL ALVARADO-DE HOYOS,

                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-507-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM:*

     Ricardo Manuel Alvarado-De Hoyos (“Alvarado”) appeals his

conviction and sentence for illegal reentry.     Alvarado challenges

the constitutionality of 8 U.S.C. § 1326(b)(1)&(2) and,

additionally, the district court’s application of the mandatory

Sentencing Guidelines.

     Alvarado’s constitutional challenge is foreclosed by

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

Although Alvarado contends that Almendarez-Torres was incorrectly


     *
       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this opinion should not be published and is not precedent except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. 04-41578
                                -2-

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).   Alvarado 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.

     Alvarado also contends that the district court erred in

sentencing him pursuant to the mandatory Guidelines regime held

unconstitutional in United States v. Booker, 125 S. Ct. 738,

764-65 (2005).   The Government concedes the error and admits that

it cannot carry its burden of establishing beyond a reasonable

doubt that the error was harmless.   See United States v. Walters,

418 F.3d 461, 464 (5th Cir. 2005).   Thus, Alvarado’s sentence is

VACATED, and the case is REMANDED for further proceedings.     See

id. at 466.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR FURTHER

PROCEEDINGS.
