                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 19, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 05-40024
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

FRANCISCO JAVIER LOZANO-MIRELES

                     Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-1171-1
                       --------------------

Before KING, SMITH and GARZA, Circuit Judges.

PER CURIAM:*

     Francisco Javier Lozano-Mireles (“Lozano”) appeals his

conviction and the 18-month sentence he received after he pleaded

guilty to a charge of illegal re-entry to the United States, a

violation of 8 U.S.C. § 1326.

     Lozano argues that the district court erred by

characterizing, for purposes of U.S.S.G. § 2L1.2(b)(1)(C), his

state felony conviction for possession of a controlled substance

as an “aggravated felony.”    Lozano’s argument is foreclosed.       See


     *
       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this opinion should not be published and is not precedent except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. 05-40024
                                -2-

United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.

1997).   Jerome v. United States, 318 U.S. 101 (1943), does not

affect this precedent.

     Lozano’s constitutional challenge to 8 U.S.C. § 1326   is

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

235 (1998).   Although Lozano 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).   Lozano 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.

     Lozano contends that his sentence must be vacated because he

was sentenced pursuant to mandatory sentencing guidelines that

were held unconstitutional in United States v. Booker, 125 S. Ct.

738 (2005).   He asserts first that the error in his case is

reversible because the error is structural and is insusceptible

of harmless error analysis.   Contrary to Lozano’s contention, we

have previously rejected this specific argument.   See United

States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).

     In the alternative, Lozano contends that the Government

cannot show that the error that occurred at his sentencing was
                            No. 05-40024
                                 -3-

harmless.   We review Lozano’s preserved challenge to his sentence

for harmless error under FED. R. CRIM. P. 52(a).   Walters, 418

F.3d at 463.

     Lozano was sentenced at the bottom of the guideline range,

and the district court provided no commentary regarding the

sentence that it imposed.   The record provides no indication, and

the Government has not shown, that the district court would not

have sentenced Lozano differently under an advisory guidelines

system.    See United States v. Garza, 429 F.3d 165, 170-71 (5th

Cir. 2005).    Accordingly, Lozano’s sentence is VACATED, and his

case is REMANDED for further proceedings consistent with this

opinion.

     Lozano’s conviction is AFFIRMED; Lozano’s sentence is

VACATED; REMANDED.
