                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 23, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-11415
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAFAEL REYES-MORALES,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 6:05-CR-31-1
                       --------------------

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Rafael Reyes-Morales appeals from his guilty-plea conviction

and sentence for illegal reentry after deportation.     For the

first time on appeal, he argues that the district court erred by

assessing separate criminal history points for his prior

sentences for sexual assault of a child and possession of a

controlled substance.   As the Government concedes, those two

sentences are related for purposes of U.S.S.G. § 4A1.2(a)(2)

because they occurred on the same occasion.   See United States v.

Moreno-Arredondo, 255 F.3d 198, 205 (5th Cir. 2001); United

     *
       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this opinion should not be published and is not precedent except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. 05-11415
                               -2-

States v. Johnson, 961 F.2d 1188, 1189 (5th Cir. 1992).   Because

the correct advisory guideline range is less than the sentence

imposed, we vacate Reyes-Morales’s sentence and remand for

resentencing consistent with this opinion.   See United States v.

Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005).

     Reyes-Morales’s constitutional challenge is foreclosed by

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

Although Reyes-Morales 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).   Reyes-Morales 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, we AFFIRM Reyes-Morales’s conviction, but we

VACATE his sentence and REMAND for resentencing.
