                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   February 15, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 05-40076
                           Summary Calendar


                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                versus

                       JOSE LUIS ZUNIGA-VIDALES,

                                                   Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                        (7:04-CR-564-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Luis Zuniga-Vidales appeals his conviction and sentence

for illegal reentry.    Zuniga challenges the constitutionality of 8

U.S.C. § 1326(b)(1), (2) (imposition of criminal penalties for

illegal reentery by aliens who have been removed for conviction of:

three or more misdemeanors involving drugs or crimes against the

person; a felony; or an aggravated felony) and the district court’s

application of the mandatory Sentencing Guidelines.       Neither issue




     *
       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this opinion should not be published and is not precedent except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.
is precluded from being raised on appeal by the waiver contained in

his plea agreement.

      As Zuniga concedes, his constitutional challenge is foreclosed

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

Although Zuniga 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).   Zuniga raises this issue to preserve it for further

review.

      Zuniga also contends the district court erred in sentencing

him   pursuant    to    the     mandatory   Guidelines   regime   held

unconstitutional in United States v. Booker, 125 S. Ct. 738, 764-65

(2005).    Because Zuniga objected in district court, “the only

question is whether the government has met its burden to show

harmless error beyond a reasonable doubt in the imposition of

[Zuniga’s] sentence”.    See United States v. Walters, 418 F.3d 461,

464 (5th Cir. 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.       Id.

           CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED

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