                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 13, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41391
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

CARLOS GRIJALBA-CELIS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-701-ALL
                      --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Carlos Grijalba-Celis (Grijalba) appeals his conviction and

the sentence he received after he pleaded guilty to illegal

reentry in violation of 8 U.S.C. § 1326.    Grijalba argues that

the “felony” and “aggravated felony” provisions in 8 U.S.C.

§ 1326(b)(1) and (b)(2) are unconstitutional in the light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).    As Grijalba

concedes, this argument is foreclosed.     See Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998); United States v.


     *
       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this opinion should not be published and is not precedent except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. 04-41391
                                -2-

Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.), cert. denied,

126 S. Ct. 253 (2005).

     Grijalba also argues, for the first time on appeal, that the

district court erred by imposing a sentence pursuant to the

mandatory Sentencing Guidelines system held unconstitutional in

United States v. Booker, 125 S. Ct. 738 (2005).     Because the

district court erred in sentencing Grijalba pursuant to a

mandatory Guidelines scheme, he meets the first two requirements

for relief under plain error review.   See United States v. Olano,

507 U.S. 725, 731-37 (1993); United States v. Valenzuela-Quevedo,

407 F.3d 728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267

(2005).   The Government concedes that Grijalba can satisfy the

third prong of plain error by showing that the district court

felt constrained by the Sentencing Guidelines and most likely

would have imposed a lower sentence under an advisory Guidelines

scheme.   We find nothing in the record that disturbs the

Government’s representation.

     Accordingly, Grijalba’s conviction under 8 U.S.C. § 1326 is

AFFIRMED; his sentence, however, is VACATED, and the case is

REMANDED for further proceedings.

     AFFIRMED IN PART; VACATED IN PART; REMANDED.
