                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 8, 2006

                                                          Charles R. Fulbruge III
                           No. 05-40007                           Clerk
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

CARLOS LOERA-CENTENO, also known as J. Felix Loera-Centeno,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1493-ALL
                       --------------------

Before KING, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

     Carlos Loera-Centeno appeals from his guilty-plea conviction

and sentence for being found in the United States after having

been previously deported.   He was sentenced to 55 months of

imprisonment and three years of supervised release.     Loera-

Centeno asserts that his sentence is invalid in light of United

States v. Booker, 543 U.S. 220 (2005).    Because the district

court sentenced Loera-Centeno under a mandatory guidelines

regime, it committed a Fanfan error.     See United States v.

Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).    Because the


     *
       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this opinion should not be published and is not precedent except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. 05-40007
                                -2-

Government concedes that Loera-Centeno preserved his Fanfan

claim, this court reviews for harmless error.     Id.; United States

v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct.

43 (2005).   Under this standard of review, the Government bears

the burden of proving beyond a reasonable doubt that the district

court would not have sentenced Loera-Centeno differently under an

advisory guidelines sentencing regime.     Walters, 418 F.3d at 464.

The record contains no indication that the district court would

have imposed the same sentence absent the error.    The Government

thus cannot meet its burden.   Accordingly, Loera-Centeno’s

sentence is vacated and the case is remanded for resentencing.

     Loera-Centeno’s constitutional challenge is foreclosed by

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

Although Loera-Centeno 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).     Loera-Centeno 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; REMANDED FOR

RESENTENCING.
