                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 19, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-41464
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALFREDO REYNA PULIDO,
                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                        USDC No. 2:06-CR-96
                       --------------------

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     Alfredo Reyna Pulido appeals his guilty-plea conviction and

30-month sentence for illegal reentry, in violation of 8 U.S.C.

§ 1326.   His constitutional challenge to § 1326(b) is foreclosed

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

Although Reyna Pulido 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.

     *
       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this opinion should not be published and is not precedent except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. 06-41464
                                -2-

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.

2005).   Reyna Pulido 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.

     Reyna Pulido additionally argues, for the first time on

appeal, that the district court misapplied the Sentencing

Guidelines by characterizing his state felony conviction for

possession of a controlled substance as an “aggravated felony”

for purposes of U.S.S.G. § 2L1.2(b)(1)(C).   Given the Supreme

Court’s recent decision in Lopez v. Gonzales, 127 S. Ct. 625

(2006), Reyna Pulido is correct.   See United States v. Estrada-

Mendoza, 475 F.3d 258, 259-61 (5th Cir.), cert. denied, 127 S.

Ct. 1845 (2007).   His conviction is affirmed.   His sentence is

vacated, and the case is remanded for resentencing.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
