                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT                     March 3, 2006

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                     No. 04-41494
                                   Summary Calendar



                           UNITED STATES OF AMERICA,

                              Plaintiff-Appellee,

                                        versus

                     ROBERTO ANTONIO SOBREVILLA-SILVESTRE,

                              Defendant-Appellant.

                               --------------------
                  Appeal from the United States District Court
                       for the Southern District of Texas
                            USDC No. 5:04-CR-1012-ALL
                               --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

       Roberto Antonio Sobrevilla-Silvestre (Sobrevilla) appeals his

guilty-plea conviction and sentence for illegal reentry after

deportation. Sobrevilla’s constitutional challenge to the “felony”

and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b) is foreclosed by Almendarez-Torres v. United States, 523

U.S.       224,    235   (1998).       Although   Sobrevilla   contends     that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of


       *
       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this opinion should not be published and is not precedent except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. 04-41494
                                    -2-

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).            Sobrevilla 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.

      Sobrevilla also argues that pursuant to United States v.

Booker, 125 S. Ct. 738 (2005), the district court erred when it

sentenced him under a mandatory application of the Sentencing

Guidelines.     Sobrevilla is correct in his contention that the

district court erred when it sentenced him pursuant to a mandatory

guidelines system.       See United States v. Valenzuela-Quevedo, 407

F.3d 728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005).             The

Government concedes that Sobrevilla’s objection during sentencing

preserved his challenge for appellate review.

     We review a preserved challenge to the mandatory application

of the Sentencing Guidelines for harmless error, and the Government

bears the     burden   of   showing    harmlessness.    United    States    v.

Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).         Before an error can

be held harmless, “the court must be able to declare a belief that

it was harmless beyond a reasonable doubt.”              Id.     Because the

Government has not met this burden, we VACATE Sobrevilla’s sentence

and REMAND for resentencing. We do not reach Sobrevilla’s argument

that the district court committed reversible plain error when it
                          No. 04-41494
                               -3-

misapplied U.S.S.G. § 2L1.2(b)(1)(A)(ii) in his case.   See United

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

         VACATE AND REMAND.
