                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  March 1, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-41034
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

LUIS ALBERTO TOLEDO-VIDES,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-188-1
                      --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Luis Alberto Toledo-Vides appeals from his guilty-plea

conviction for reentry of a deported alien, in violation of 8

U.S.C. § 1326.    Toledo-Vides argues that his sentence should be

vacated and remanded because the district court sentenced him

under the mandatory guidelines scheme held unconstitutional in

United States v. Booker, 543 U.S. 220 (2005).

     Because the district court sentenced Toledo-Vides under a

mandatory guidelines regime, it committed error.     See United


     *
       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this opinion should not be published and is not precedent except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. 04-41034
                                -2-

States v. Valenzuela-Quevado, 407 F.3d 728, 733 (5th Cir.), cert.

denied, 126 S. Ct. 267 (2005); see also United States v. Walters,

418 F.3d 461, 463 (5th Cir. 2005).   The Government concedes that

Toledo-Vides’s objection below preserved his claim.    We cannot

affirm the erroneous sentence unless the Government shows that

the error is harmless beyond a reasonable doubt.   See United

States v. Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005).     We

conclude that the Government has not met its burden.    See United

States v. Garza, 429 F.3d 165, 171 (5th Cir. 2005).    We therefore

VACATE Toledo-Vides’s sentence and remand for re-sentencing.

     Toledo-Vides also challenges the constitutionality of 8

U.S.C. § 1326(b).   His constitutional challenge is foreclosed by

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

Although Toledo-Vides 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).   Toledo-Vides 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, Toledo-Vides’s

conviction is AFFIRMED.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
