                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                      March 6, 2006
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk

                                 No. 04-41607
                               Summary Calendar


UNITED STATES OF AMERICA
                                                Plaintiff-Appellee,

                                    versus

JOEL ESTUARDO ALVARADO-PALMA
                                                Defendant-Appellant.


            Appeal from the United States District Court
                 For the Southern District of Texas

                        (USDC No. 5:04-CR-1005-1)

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

      Joel Estuardo Alvarado-Palma appeals his sentence following

his guilty-plea conviction for illegal reentry.             Alvarado 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).    Alvarado’s    constitutional

challenge is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998).        Although Alvarado contends that Almendarez-

Torres was incorrectly decided and that a majority of the Supreme

Court would overrule Almendarez-Torres in light of Apprendi, we


      *
       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should not be published and is not precedent except under the limited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.
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).       Alvarado   properly   concedes   that      his    argument    is

foreclosed, but he raises it here to preserve it for further

review.

       Alvarado 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 Alvarado has preserved

this issue for appeal.          The government cannot show beyond a

reasonable doubt that the error was harmless.       See United States v.

Walters, 418 F>3d 461, 463-64.

       Accordingly, we REMAND to the district court to allow the

district court to resentence Alvarado if, in its discretion under

the now-advisory Guidelines, it chooses to do so.



       CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.




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