                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  February 27, 2006

                                                             Charles R. Fulbruge III
                                                                     Clerk
                             No. 04-41444
                           Summary Calendar



UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

versus

ANGEL ARELLANO-RAMIREZ,

                                       Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 7:04-CR-346-ALL
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges:

PER CURIAM:*

     Angel Arellano-Ramirez appeals his guilty-plea conviction and

sentence   for   being   unlawfully   present   in   the   United    States

following deportation. He argues that the district court committed

reversible error under United States v. Booker, 543 U.S. 220

(2005), by sentencing him pursuant to a mandatory application of

the guidelines.     As the Government concedes, Arellano preserved

this issue for review by raising an objection based upon Blakely v.

Washington, 542 U.S. 296 (2004), in the district court.        See United


     *
       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this opinion should not be published and is not precedent except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. 04-41444
                                    -2-

States   v.   Walters,   418   F.3d   461,    462-63    (5th    Cir.   2005).

Accordingly, the question before us “is whether the government has

met its burden to show harmless error beyond a reasonable doubt.”

Id. at 464.

     The district court erred by sentencing Arellano under the

mistaken belief that the guidelines were mandatory.              See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert.

denied, 126 S. Ct. 267 (2005).        While the district court denied

Arellano’s request for a downward departure, it sentenced him at

the low end of the guidelines range and did not state what sentence

it would impose if the guidelines were held unconstitutional.             In

these circumstances, the Government has not met its “arduous

burden” of showing that the error was harmless.             United States v.

Garza, 429 F.3d 165, 170 (5th Cir. 2005) (internal quotation marks

omitted). Accordingly, we vacate Arellano’s sentence and remand to

the district court for resentencing.

     Arellano’s    constitutional      challenge       is    foreclosed   by

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

Although Arellano 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).     Arellano properly concedes that his argument is
                           No. 04-41444
                                -3-

foreclosed in light of Almendarez-Torres and circuit precedent, but

he raises it here to preserve it for further review.

     CONVICTION   AFFIRMED;   SENTENCE    VACATED;   REMANDED   FOR

RESENTENCING.
