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

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                No. 05-40079
                              Summary Calendar




UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

ROMAN MORA-GRANADOS,

                                           Defendant-Appellant.



                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                         No. 5:03-CR-910-ALL
                        --------------------



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

      Having pleaded guilty, Roman Mora-Granados appeals his convic-

tion and 46-month sentence for being illegally present in the Unit-

ed States following deportation in violation of 8 U.S.C. § 1326.

Mora-Granados’s constitutional challenge to § 1326 is foreclosed by

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



      *
        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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
though he contends that Almendarez-Torres was incorrectly decided

and that a majority of the Supreme Court would overrule it 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). Mora-Granados properly

concedes that his argument is foreclosed in light of Almendar-

ez-Torres and circuit precedent, but he raises it to preserve it

for further review.    Accordingly, the conviction is affirmed.

     Mora-Granados contends that his sentence must be vacated be-

cause he was sentenced pursuant to mandatory guidelines that were

held unconstitutional in United States v. Booker, 543 U.S. 220

(2005).    Although he asserts that the error in his case is struc-

tural and not susceptible of harmless error analysis, we have re-

jected this specific argument.     See United States v. Walters, 418

F.3d 461, 463 (5th Cir. 2005).

     In the alternative, Mora-Granados contends that the government

cannot show that the sentencing error was harmless. We review this

preserved challenge to the sentence for harmless error under FED.

R. CRIM. P. 52(a).    See Walters, 418 F.3d at 463.

     The government concedes that the record does not indicate that

the district court would have imposed the same sentence under an

advisory guidelines regime.     See United States v. Garza, 429 F.3d

165, 170-71 (5th Cir. 2005), cert. denied, 2006 U.S. LEXIS 1926

(U.S. Feb. 27, 2006) (No. 05-8843).      Accordingly, we vacate the
sentence and remand for further proceedings consistent with this

opinion.

    CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.
