                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 18, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-11464
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN CARLOS ROCHA-AGUILAR, also known as
Juan Carlos Rocha Aguilar,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 4:04-CR-109-ALL
                      --------------------

Before HIGGINBOTHAM, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Juan Carlos Rocha-Aguilar (Rocha) was convicted following

pleading guilty to one count of illegal reentry following

deportation, in violation of 8 U.S.C. § 1326.   Rocha argues that

the district court erred in denying his motion to dismiss the

indictment on the basis that his prior deportation was invalid

and in characterizing his prior state felony conviction for

simply possession of cocaine as an “aggravated felony” for

sentencing purposes.   He concedes, however, that these issues are

     *
       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this opinion should not be published and is not precedent except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. 04-11464
                                -2-

foreclosed.   See United States v. Hernandez-Avalos, 251 F.3d 505,

509 (5th Cir. 2001); United States v. Hinojosa-Lopez, 130 F.3d

691, 693-94 (5th Cir. 1997).

     Rocha also argues that the district court erred by imposing

a sentencing under a mandatory federal sentencing guideline

scheme, which was held to be unconstitutional in United States v.

Booker, 125 S. Ct. 738 (2005).   The Government concedes that

Rocha preserved the issue in the district court, that the

district court committed error, and that the error was not

harmless.   In light of the foregoing, the Government’s unopposed

motion for summary affirmance of the conviction and to vacate the

sentence and remand for resentencing is GRANTED.   Rocha’s

conviction is AFFIRMED, but we VACATE the district court’s

sentence and REMAND for resentencing in accordance with Booker.

     MOTION GRANTED; CONVICTION AFFIRMED; VACATED AND REMANDED

FOR RESENTENCING.
