                                                                                         United States Court of Appeals
                                                                                                  Fifth Circuit
                                                                                               F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                               February 6, 2006
                                  FOR THE FIFTH CIRCUIT
                                                                                            Charles R. Fulbruge III
                                                                                                    Clerk


                                           No. 04-41084
                                         Summary Calendar



UNITED STATES OF AMERICA,

                                                                                          Plaintiff-
                                                          Appellee,

                                                 versus

MARIO ALBERTO LOPEZ-MARTINEZ,
True Name, Mario Alejandro Lopez-Martinez,

                                                                                        Defendant-
                                                          Appellant.

                      ---------------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Southern District of Texas
                                     USDC No. 5:04-CR-424-1
                     ----------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Mario Alberto Lopez-Martinez (Lopez) appeals from his conviction of illegal reentry

following deportation pursuant to 8 U.S.C. § 1346.

       Lopez challenges the constitutionality o f 8 U.S.C.§ 1326(b). His constitutional challenge is

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

       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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). Lopez

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.

       Lopez contends that the district court erred by sentencing him under the then-mandatory

guideline sentencing scheme that was rendered advisory in United States v. Booker, 125 S. Ct. 738

(2005). He argues that his sentence must be vacated and his case remanded for resentencing unless

the Government can show beyond a reasonable doubt that the district court’s error was harmless.

The Government agrees that the harmless-error standard applies, and it waives any argument that the

error at Lopez’s sentencing was harmless. The Government “does not oppose a remand for

resentencing.” Because the Government waives any harmless-error argument, Lopez’s sentence is

vacated, and the case is remanded for resentencing.

       AFFIRMED IN PART; VACATED AND REMANDED IN PART.
