                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 2, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41423
                     USDC No. 7:04-CR-439-ALL


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN BAUTISTA FLORES-HERNANDEZ,

                                     Defendant-Appellant.

                        --------------------

          Appeal from the United States District Court
               for the Southern District of Texas

                        --------------------

Before REAVLEY, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

     Juan Bautista Flores-Hernandez appeals his illegal reentry

conviction and sentence.    The Government concedes that the

district court’s 16-level enhancement pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(i) (2003), was plainly erroneous because the

sentence imposed following Flores’s 2002 state conviction for

possession of a controlled drug with intent to distribute did

not exceed 13 months.   See U.S.S.G. § 2L1.2(b)(1)(A), comment.

(n.1); U.S.S.G. § 4A1.2(b)(2).    Flores’s sentence is therefore


     *
      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this opinion should not be published and is not precedent except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.
                              O R D E R
                            No. 04-41423
                                 -2-

VACATED and the case REMANDED for resentencing.    Flores

acknowledges that the remand resulting from the guidelines-

application error renders moot the issue whether his sentencing

under the mandatory guidelines regime necessitates a remand under

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

       Flores concedes that the issue whether 8 U.S.C.

§ 1326(b)(1)&(2) were rendered unconstitutional by Apprendi v.

New Jersey, 530 U.S. 466 (2000), is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998), and he raises

it solely to preserve its further review by the Supreme Court.

Apprendi did not overrule Almendarez-Torres.    See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000).    We therefore must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted).

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR
RESENTENCING.
