                                                       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. 04-41538
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

NOLBERTO SOTO-SORIA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-962-ALL
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Nolberto Soto-Soria (Soto) appeals his sentence from a

guilty-plea conviction for re-entry of a deported alien.        See

8 U.S.C. § 1326(b)(2).   Soto argues that his sentence should be

vacated and remanded because the district court sentenced him

under a mandatory Guideline scheme held unconstitutional in

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

     As the Government concedes, Soto’s “Fanfan” claim is

reviewed for harmless error.   See United States v. Walters, 418


     *
       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this opinion should not be published and is not precedent except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. 04-41538
                                 -2-

F.3d 461, 464 (5th Cir. 2005).    The instant record fails to

provide clear commentary from the district court regarding

whether it would have imposed the same sentence under a post-

Booker environment.    See id.   Accordingly, the district court’s

“Fanfan” error was not harmless on the instant record.     See id.

     Soto also challenges the constitutionality of

8 U.S.C. § 1326(b).   His constitutional challenge is foreclosed

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

Although Soto contends that Almendarez-Torres was 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).    Soto 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.

     We VACATE Soto’s sentence and REMAND for resentencing.
