                                                        United States Court of Appeals
                                                                 Fifth Circuit
               IN THE UNITED STATES COURT OF APPEALS         FILED
                       FOR THE FIFTH CIRCUIT
                                                             April 4, 2007

                                                       Charles R. Fulbruge III
                           No. 06-40841                        Clerk
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALGER EDUARDO FRAGOSA-ALANIZ,
                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                         (1:06-CR-19-ALL)
                       --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Alger Eduardo Fragosa-Alaniz (Fragosa-

Alaniz) appeals his conviction and sentence for illegal reentry.

Fragosa-Alaniz’s constitutional challenge to 8 U.S.C. § 1326(b) is

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

(1998).   Although Fragosa-Alaniz 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


     *
       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this opinion should not be published and is not precedent except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.
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).                 Fragosa-Alaniz 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.

      The district court, however, erred in enhancing Fragosa-

Alaniz’s     sentence      pursuant       to    U.S.S.G.      §    2L1.2(b(1)(C)       by

determining that his state conviction for simple possession of a

controlled substance was an “aggravated felony.” See United States

v.   Estrada-Mendoza,       475    F.3d    258,      261    (5th   Cir.    2007).      We

therefore vacate Fragosa-Alaniz’s sentence and remand his case for

resentencing.    See id.

      We grant Fragosa-Alaniz’s unopposed motion to (1) withdraw his

argument that the district court erred in assessing four criminal

history     points   for     two    prior       convictions,       (2)     affirm     his

conviction, and (3) vacate and remand his sentence.

      MOTION   GRANTED;      AFFIRMED          IN   PART,    VACATED      IN   PART   AND

REMANDED.




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