                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 13, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40118
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAUL MALDONADO-CRUZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-1659-1
                       --------------------

Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*

     Raul Maldonado-Cruz (Maldonado) appeals his guilty-plea

conviction and 57-month sentence for being presented in the

United States following deportation.   Maldonado argues that

8 U.S.C. § 1326(b) is unconstitutional because it treats prior

felony and aggravated felony convictions as sentencing factors.

Maldonado’s constitutional challenge is foreclosed by

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

Although Maldonado contends that Almendarez-Torres was


     *
       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this opinion should not be published and is not precedent except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. 05-40118
                                  -2-

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).    Maldonado 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.

     Maldonado also contends that the district court erred in

sentencing him pursuant to the mandatory guideline regime held

unconstitutional in United States v. Booker, 543 U.S. 220, 125

S. Ct. 738, 764-65 (2005).    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).

     Conviction AFFIRMED.    The case is REMANDED for

reconsideration and for resentencing if the district court

decides appropriate.
