                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                     March 2, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 04-41532
                          Summary Calendar



                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                               versus

                        RAMON GONZALEZ-LOPEZ,

                        Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:04-CR-891-ALL
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Ramon Gonzales-Lopez pleaded guilty to illegal reentry after

deportation in violation of 8 U.S.C. § 1326 and was sentenced to 57

months of imprisonment and three years of supervised release.

     Gonzalez-Lopez’s   constitutional   challenge   to     §    1326    is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998).   Although Gonzalez-Lopez 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


     *
       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this opinion should not be published and is not precedent except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. 04-41532
                                          -2-

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).              Gonzalez-Lopez 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.     Accordingly, Gonzalez-Lopez’s conviction is affirmed.

       Gonzalez-Lopez 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 that the error is

structural        and     is   insusceptible   of   harmless      error   analysis.

Contrary     to     Gonzalez-Lopez’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,      Gonzalez-Lopez       contends      that   the

Government cannot show that the Fanfan error was harmless.                        We

review Gonzalez-Lopez’s preserved challenge to his sentence for

harmless error under FED. R. CRIM. P. 52(a).                Walters, 418 F.3d at

463.

       Gonzalez-Lopez was sentenced at the low end of the guideline

range.      The record provides no indication, and the Government has

not shown,         that    the   district   court   would   not    have   sentenced

Gonzalez-Lopez differently under an advisory guidelines system.

See United States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005).
                              No. 04-41532
                                   -3-

Accordingly, Gonzalez-Lopez’s sentence is vacated, and his case is

remanded for further proceedings consistent with this opinion.

     CONVICTION   AFFIRMED;    SENTENCE   VACATED   AND   REMANDED   FOR

RESENTENCING.
