                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 22, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41029
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BERNARDO GONZALEZ-MARTINEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-550-1
                      --------------------

Before KING, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

     Bernardo Gonzalez-Martinez appeals his guilty-plea

conviction of and sentence for being an alien found in the United

States illegally.   Gonzalez-Martinez argues that there was error

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

was sentenced under the mandatory Sentencing Guidelines.       He

asserts that the Government cannot show that the Booker error is

harmless beyond a reasonable doubt because the error is

structural and not subject to harmless error analysis.      His


     *
       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this opinion should not be published and is not precedent except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. 04-41029
                                  -2-

argument that the error was structural is foreclosed.      See United

States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert.

denied, 126 S. Ct. 464 (2005).

     Gonzalez-Martinez also argues that, even if the error was

not structural, the error cannot be shown to be harmless beyond a

reasonable doubt.    The Government concedes that Gonzalez-Martinez

has preserved the issue for appeal.    Our review is thus for

harmless error.     See United States v. Walters, 418 F.3d 461, 464

(5th Cir. 2005).    The Government bears the burden of proving

beyond a reasonable doubt that the district court would not have

sentenced Gonzalez-Martinez differently under an advisory

guideline sentencing regime.     See id.

     The instant record fails to provide clear commentary from

the district court regarding whether it would have imposed the

same sentence in a post-Booker environment.     See id.   The

Government thus has not carried its burden of showing harmless

error.   See id.    We therefore remand Gonzalez-Martinez’s case for

resentencing.

     Gonzalez-Martinez 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 Gonzalez-Martinez 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
                           No. 04-41029
                                -3-

arguments on the basis that Almendarez-Torres remains binding.

See United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.

2003).   Gonzalez-Martinez 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.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
