                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 22, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40099
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MAURICIO EGARDO TEJADA-CALDERON,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-1410-1
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Mauricio Egardo Tejada-Calderon (Tejada) his guilty-plea

conviction and sentence for illegal reentry, in violation of 8

U.S.C. § 1326(b)(1)&(2).    He argues that the district court erred

in sentencing him under the mandatory Sentencing Guidelines

regime held unconstitutional in United States v. Booker, 125

S. Ct. 738, 764-65 (2005).    The sentencing transcript is devoid

of evidence that the district court would have imposed the same

sentence under an advisory regime, and, therefore, the Government


     *
       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this opinion should not be published and is not precedent except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. 05-40099
                                -2-

has not borne its burden of establishing beyond a reasonable

doubt that the district court’s error was harmless.     See United

States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).

Accordingly, Tejada’s sentence is VACATED, and the case is

REMANDED for further proceedings.   See id. at 466.

     Because we vacate Tejada’s sentence and remand for

resentencing under an advisory guidelines scheme, we do not reach

the other claims of sentencing error that Tejada raises.     See

United States v. Akpan, 407 F.3d 360, 377 n. 62 (5th Cir. 2005).

To the extent that Tejada challenges his conviction by asserting

that the “felony” and “aggravated felony” provisions of

§ 1326(b) are unconstitutional, the claim is foreclosed.     by

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

Although Cortez 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).   Cortez 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.

     For the foregoing reasons, we AFFIRM Tejada’s conviction,

but we VACATE his sentence and REMAND for re-sentencing.
