                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 21, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41460
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

PEDRO ALONSO GALAN-DE LA TORRE, also known as Fernando Gomez-
Torres,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-302-ALL
                      --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Pedro Alonso Galan-De La Torre appeals his conviction and

sentence for illegal reentry.   Galan challenges the

constitutionality of 8 U.S.C. § 1326(b)(1), (2) and,

additionally, the district court’s application of the mandatory

Sentencing Guidelines.

     Galan’s constitutional challenge is foreclosed by

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

Although Galan contends that Almendarez-Torres was incorrectly

     *
       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this opinion should not be published and is not precedent except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. 04-41460
                                  -2-

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).    Galan 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.

     Galan also contends that the district court erred in

sentencing him pursuant to the mandatory Guidelines regime held

unconstitutional in United States v. Booker, 125 S. Ct. 738,

764-65 (2005).    The Government concedes that Galan has preserved

his claim of error.    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

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).    Thus,

Galan’s sentence is VACATED, and the case is REMANDED for further

proceedings.     See id. at 466.
