                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                 F I L E D
                      IN THE UNITED STATES COURT OF APPEALS                      March 16, 2006
                              FOR THE FIFTH CIRCUIT
                                                                            Charles R. Fulbruge III
                                                                                    Clerk

                                     No. 04-41083
                                   Summary Calendar



                            UNITED STATES OF AMERICA,

                                  Plaintiff-Appellee,

                                           versus

                            ALFONSO NAVARRETE-MENDOZA,

                                 Defendant-Appellant.

                             --------------------
                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 5:04-CR-533-1
                             --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

           Alfonso Navarrete-Mendoza (Navarrete) appeals his sentence

following        his    guilty     plea     conviction      for    illegal       reentry.

Navarrete        argues    that     the    “felony”     and   “aggravated         felony”

provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional

in       light   of    Apprendi    v.     New    Jersey,    530    U.S.    466    (2000).

Navarrete’s            constitutional           challenge     is     foreclosed          by

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



     *
    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this opinion should not be published and is not precedent except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. 04-41083
                                    -2-

Although Navarrete 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).     Navarrete 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.

    Navarrete also argues that the district court reversibly erred

under United States v. Booker, 125 S. Ct. 738 (2005), by sentencing

him pursuant to a mandatory application of the federal Sentencing

Guidelines.   The Government concedes that Navarrete has preserved

this issue for appeal.         The Government, however, has not shown

beyond a reasonable doubt that the error was harmless.          See United

States   v.   Walters,   418    F.3d   461,   463-64   (5th   Cir.   2005).

Accordingly, Navarrete’s sentence is VACATED, and this case is

REMANDED for resentencing.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
