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

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                No. 04-41545
                              Summary Calendar


                        UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

                              RODOLFO RAMOS,

                                                       Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas
                          (5:04-CR-1028-ALL)



Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Rodolfo    Ramos   appeals      his   sentence   upon   his   guilty–plea

conviction for violating 8 U.S.C. § 1326.

     Ramos first asserts the district court’s belief at the time of

sentencing     that   the   United   States   Sentencing     Guidelines      were

mandatory, rather than advisory, requires reversal under United

States v. Booker, 543 U.S. 220 (2005). Because Ramos preserved the

Fanfan error in the district court, we review for harmless error.

     *
       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this opinion should not be published and is not precedent except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.

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 See United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.), cert.

 denied, 126 S. Ct. 43 (2005).           The Government has not met its

 burden of proving beyond a reasonable doubt that the district judge

 would have imposed the same sentence under an advisory guidelines

 regime.   See United States v. Walters, 418 F.3d 461, 463-65 (5th

 Cir. 2005).     Therefore, Ramos’ sentence is vacated; the case

 remanded to district court for resentencing.

       Ramos also maintains the “felony” and “aggravated felony”

 provisions of 8 U.S.C. § 1326(b) are unconstitutional.         This issue

 is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

 235   (1998).    Although   Ramos       contends   Almendarez-Torres   was

 incorrectly decided and that a majority of the Supreme Court would

 overrule it in the light of Apprendi v. New Jersey, 530 U.S. 466

 (2000), we have repeatedly rejected such contentions 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). Ramos concedes Almendarez-Torres and circuit precedent

 foreclose this claim; he raises it to preserve it for further

 review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING




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