                                                              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, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 05-40073
                             Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JOSE GUADALUPE GARCIA-GOMEZ,

                                         Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 7:04-CR-566-All
                        --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Guadalupe Garcia-Gomez appeals his guilty-plea sentence

for illegal reentry into the United States following deportation.

Garcia-Gomez first challenges the constitutionality of 8 U.S.C.

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense, arguing that they must be found by a jury in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).           The Government




     *
            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opinion should not be published and is not precedent except under the limited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. 05-40073
                                 -2-

argues that the sentence appeal waiver in Garcia-Gomez’s plea

agreement bars his claim.

     The waiver-of-appeal provision is construed against the

Government as the drafter of the plea agreement.     See United

States v. Somner, 127 F.3d 405, 408 (5th Cir. 1997).       Because

Garcia-Gomez’s plea agreement does not specifically waive the

right to attack the constitutionality of § 1326(b), we conclude

that the waiver provision does not preclude this appeal.       See id.

     Garcia-Gomez cannot succeed on this claim, however, because

his constitutional challenge is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998).     Although

Garcia-Gomez contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, 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).

Garcia-Gomez 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.

     Garcia-Gomez also contends that his sentence must be vacated

and his case remanded for resentencing because the district court

committed reversible error by sentencing him pursuant to a

mandatory sentencing guidelines regime in violation of United

States v. Booker, 543 U.S. 220 (2005).     The Government argues
                            No. 05-40073
                                 -3-

that, under the terms of the plea agreement, Garcia-Gomez waived

his Booker/Fanfan argument.    We review de novo whether a waiver

provision bars an appeal.     United States v. Baymon, 312 F.3d 725,

727 (5th Cir. 2002).   In United States v. Reyes-Celestino, 443

F.3d 451, 453 (5th Cir. 2006), we addressed waiver language

virtually identical to that in this case and held that it does

not bar an appeal based on Fanfan.     See id.

     Where, as in this case, a Booker/Fanfan error has been

preserved in the district court, we will ordinarily vacate and

remand for resentencing if the Government cannot show that the

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

463-64 (5th Cir. 2005).   It is unclear that the district court

would have imposed the same sentence had the Guidelines been

advisory only.    As such, the Government cannot meet its burden.

See id. at 464.

     Accordingly, we vacate Garcia-Gomez’s sentence and remand

the case for resentencing.1

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.




     1
        Garcia-Gomez also contends that an error under Booker is
structural because it affected the entire framework within which
his sentencing proceeded. We have previously rejected this
argument. See United States v. Malveaux, 411 F.3d 558, 561 n.9
(5th Cir.), cert. denied, 126 S. Ct. 194 (2005).
