                                                       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. 05-40177
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARIANO DEL CID-MENDEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1780-ALL
                       --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Mariano Del Cid-Mendez appeals his conviction and sentence

for illegal reentry.   Del Cid challenges the constitutionality of

8 U.S.C. § 1326(b)(1), (2) and, additionally, the district

court’s application of the mandatory Sentencing Guidelines.

     Del Cid’s constitutional challenge is foreclosed by

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

Although Del Cid contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule


     *
       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this opinion should not be published and is not precedent except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. 05-40177
                                -2-

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).   Del Cid 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.

     Del Cid also contends that the district court erred in

sentencing him pursuant to the mandatory Guidelines regime held

unconstitutional in United States v. Booker, 125 S. Ct. 738,

764-65 (2005).   The Government concedes that Del Cid has

preserved this issue on appeal.   The sentencing transcript is

devoid of evidence that the district court would have imposed the

same sentence under an advisory regime, and, therefore, the

Government has not borne its burden of establishing beyond a

reasonable doubt that the district court’s error was harmless.

See United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).

Thus, Del Cid’s sentence is VACATED, and the case is REMANDED for

further proceedings.   See id. at 466.
