                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 8, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41459
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DAVID LUGO-VALOIS,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:04-CR-737-ALL
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     David Lugo-Valois (Lugo) appeals his conviction and sentence

for illegal reentry following deportation.   Lugo argues that the

district court committed reversible error under United States v.

Booker, 543 U.S. 220 (2005), by sentencing him pursuant to a

mandatory application of the Sentencing Guidelines.     The

Government concedes that Lugo has preserved this issue for

appeal.   The Government, however, has not shown beyond a

reasonable doubt that the error was harmless.   See United States


     *
       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this opinion should not be published and is not precedent except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. 04-41459
                                -2-

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

Lugo’s sentence is vacated, and this case is remanded for

resentencing.

     He also 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).   Lugo’s constitutional challenge is foreclosed by

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

Although Lugo contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, 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).    Lugo

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.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
