                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 27, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-41004
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ALBERTO HERNANDEZ-LOZANO,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-229-1
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Alberto Hernandez-Lozano (Hernandez) appeals his conviction

and the 41-month sentence that was imposed for his guilty plea to

a charge of being found in the United States following removal, a

violation of 8 U.S.C. § 1326.

     Hernandez’s constitutional challenge to 8 U.S.C. § 1326 is

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

235 (1998).    Although Hernandez contends that Almendarez-Torres

was incorrectly decided and that a majority of the Supreme Court


     *
       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this opinion should not be published and is not precedent except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. 04-41004
                                -2-

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).    Hernandez 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, Hernandez’s conviction is affirmed.

     Hernandez asserts that his sentence must be vacated because

he was sentenced pursuant to mandatory Sentencing Guidelines in

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

asserts that the error in his case is structural and is

insusceptible to harmless error analysis.    Contrary to

Hernandez’s contention, we have previously rejected this specific

argument.   See United States v. Walters, 418 F.3d 461, 463 (5th

Cir. 2005).

     Hernandez contends that the Government cannot show that the

error that occurred at his sentencing was harmless.    The

Government concedes that Hernandez preserved his claim of error.

We review Hernandez’s challenge to his sentence for harmless

error under FED. R. CRIM. P. 52(a).   See Walters, 418 F.3d at 463.

Nothing in the record demonstrates and the Government has not

shown that the district court would not have imposed a different

sentence under advisory Sentencing Guidelines.     United States v.

Garza, 429 F.3d 165, 170-71 (5th Cir. 2005).     Accordingly,
                          No. 04-41004
                               -3-

Hernandez’s sentence is vacated, and his case is remanded for

further proceedings consistent with this opinion.

     AFFIRMED IN PART; VACATED IN PART; REMANDED.
