                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 17, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-41522
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN APARICIO-MARTINEZ, true name Juan Silvestre
Aparicio-Martinez,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                        (5:04-CR-537-ALL)
                      --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant      Juan   Silvestre     Aparicio-Martinez

(Aparicio) appeals his sentence under 8 U.S.C. § 1326(a) and (b)

for illegal re-entry into the United States after having been

deported following conviction for an aggravated felony.

     Aparicio maintains that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b) are unconstitutional.      This issue

is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).    Although Aparicio 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this opinion should not be published and is not precedent except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.
incorrectly decided and that majority of the Supreme Court would

overrule it 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).     Aparicio candidly concedes that his argument is

foreclosed in light of Almendarez-Torres and circuit precedent,

raising it here solely to preserve it for further review.                             His

conviction is AFFIRMED.

     In   addition,   Aparicio   asserts    that      the     district         court’s

proceeding during sentencing under the United States Sentencing

Guidelines as mandatory, rather than advisory, requires us to

reverse under United States v. Booker, 543 U.S. 220 (2005).                             We

apply a harmless error standard of review. United States v. Mares,

402 F.3d 511, 520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005).   The government has not met its burden of proving that the

district judge would have imposed the same sentence under an

advisory guidelines regime. See United States v. Walters, 418 F.3d

461, 463-65 (5th Cir. 2005).      Aparicio’s sentence is thus vacated

and his case remanded to the district court for resentencing in

accordance with United States v. Booker.

     CONVICTION   AFFIRMED;      SENTENCE    VACATED         AND      REMANDED FOR

RESENTENCING.


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