                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 1, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-41691
                          Summary Calendar



     UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

          versus

     EFRAIN GOMEZ,

                                          Defendant-Appellant.




           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:04-CR-1044-ALL



Before KING, GARWOOD and SMITH, Circuit Judges.

PER CURIAM:*

     Efrain Gomez appeals the sentence imposed following this

guilty-plea conviction for illegal entry, in violation of 8 U.S.C.

§ 1326.   He argues first that the district court erred when, over

his proper objection, it classified his prior state conviction as

a drug-trafficking offense that warranted a 12-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(B).



     *
      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opinion should not be published and is not precedent except under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.
     As   the   Government      concedes,      Gomez     both    preserved    this

contention below and is correct in his assertion that the district

court   erred   in   applying    this       guidelines    enhancement      because

California Health & Safety Code § 11352(a), the state statute under

which Gomez was convicted, is worded so that some, but not all,

violations of the statute constitute a drug-trafficking offense

consistent    with   the   guidelines       definition,    and     the   documents

introduced by the Government to support the enhancement indicated

only that Gomez had been convicted of violating that state statute.

See United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir.),

cert. denied, 126 S.Ct. 298 (2005); United States v. Gutierrez-

Ramirez, 405 F.3d 352, 352-60 (5th Cir.), cert. denied, 126 S.Ct.

217 (2005).     We reject the Government’s contention that this

properly preserved error was harmless.                 The Government has not

carried its burden in this respect because the record does not

sufficiently indicate that the district court would have imposed

the same sentence absent the guidelines error.                  See United States

v. Ahmed, 324 F.3d 368, 374 (5th Cir. 2003); United States v.

Waskom, 179 F.3d 303, 312 (5th Cir. 1999).

     Gomez argues that, in light of United States v. Booker, 125

S.Ct. 738 (2005), the district court erred in sentencing him under

a mandatory guidelines scheme.          The Government concedes the error

and its proper preservation below, but contends it was harmless.

However, the Government has not carried its burden in this respect.


                                        2
     Finally, Gomez challenges the constitutionality of 8 U.S.C. §

1326(b)’s    treatment    of     prior       felony    and   aggravated   felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).             This constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998).     Although     Gomez   contends       that    Almendarez-Torres   was

incorrectly decided and that a majority of the Supreme Court would

overrule Almendariz-Torres in light of Apprendi, we have repeatedly

rejected such arguments on the basis that Almendariz-Torres remains

binding.    See Garza-Lopez, 410 F.3d at 276.

     We therefore AFFIRM Gomez’s conviction, but we VACATE his

sentence and REMAND for resentencing consistent with this opinion

and the Supreme Court’s opinion in Booker.




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