                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                     March 14, 2006
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 05-40082
                             Summary Calendar


                        UNITED STATES OF AMERICA
                                            Plaintiff-Appellee,

                                   versus

          IVAN ALVARADO, also known as Erik Fuentes-Garcia
                                          Defendant-Appellant.


            Appeal from the United States District Court
                 For the Southern District of Texas

                        (USDC No. 5:04-CR-1837-1)

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

      Ivan Alvarado appeals his sentence following his guilty plea

conviction for illegal reentry.        Alvarado argues that the “felony”

and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and

(b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530

U.S. 466 (2000). Alvarado’s constitutional challenge is foreclosed

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

Although Alvarado 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.

      *
       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should not be published and is not precedent except under the limited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.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied 126 S. Ct. 298 (2005).      Alvarado 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.

     Alvarado also argues that the district court erred under

United States v. Booker, 543 U.S. 220 (2005), by sentencing him

under a mandatory application of the federal sentencing guidelines.

The government concedes that Alvarado preserved this issue for

appeal.     However, the government cannot show that the error was

harmless.    See United States v. Walters, 418 F.3d 461, 463-64 (5th

Cir. 2005).    Accordingly, we REMAND to the district court to allow

the district court to resentence Alvarado if, in its discretion

under the now-advisory Guidelines, it chooses to do so.



     CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.




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