                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                               F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                                March 7, 2006
                                    FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                           No. 05-20069
                                         Summary Calendar



UNITED STATES OF AMERICA,

                                                                                          Plaintiff-
                                                          Appellee,

                                                 versus

RENE GARCIA DEL FIERRO,
also known as Rene Garcia,

                                                                                        Defendant-
                                                          Appellant.

                      ---------------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Southern District of Texas
                                    USDC No. 4:04-CR-61-ALL
                     ----------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Rene Garcia del Fierro appeals his guilty-plea conviction and 55-month sentence for illegal

reentry after deportation, a violation of 8 U.S.C. § 1326. Garcia’s constitutional challenge to 8

U.S.C. § 1326 is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Garcia contends that Almendarez-Torres was incorrectly decided and that a majority of 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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). Garcia 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 contends that his sentence must be vacated because he was sentenced pursuant to the

mandatory sentencing guidelines regime that was held unconstitutional in United States v. Booker,

543 U.S. 220 (2005). We review Garcia’s preserved challenge to his sentence for harmless error

under FED. R. CRIM. P. 52(a). United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005). The

district court, in denying Garcia’s FED. R. CRIM. P. 35(a) motion, stated that “the Court has no reason

to believe in retrospect that it would have found the advisory guideline range unreasonable or that

it would have imposed a more lenient sentence upon Garcia” had the court considered the Guidelines

to be advisory only. Based on the district court’s statements, we conclude that the error in the

imposition of Garcia’s sentence was harmless beyond a reasonable doubt. See Walters, 418 F.3d at

464.

        Garcia further argues that the sentencing error is structural and presumptively prejudicial. As

Garcia concedes, we have previously rejected this argument. Walters, 418 F.3d at 463; United States

v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005).

   AFFIRMED.




                                                 -2-
