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


                                           No. 04-41375
                                         Summary Calendar



UNITED STATES OF AMERICA,

                                                                                          Plaintiff-
                                                          Appellee,

                                                 versus

MARTIN LOPEZ-SANCHEZ,

                                                                                        Defendant-
                                                          Appellant.

                     ----------------------------------------------------------------
                           Appeal from the United States District Court
                                 for the Southern District of Texas
                                   USDC No. 5:04-CR-393-ALL
                     ----------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges

PER CURIAM:*

       Martin Lopez-Sanchez (Lopez) appeals his conviction and sentence for illegal reentry

following deportation. Lopez argues that the district court committed reversible error under United

States v. Booker, 543 U.S. 220 (2005), by sentencing him pursuant to a mandatory application of the

Sentencing Guidelines. The Government concedes that Lopez has preserved this issue for appeal.



       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
The Government, however, has not shown beyond a reasonable doubt that the error was harmless.

See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Accordingly, Lopez’s sentence

is vacated, and this case is remanded for resentencing.

       He also 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). Lopez’s

constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998). Although Lopez 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. See United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Lopez

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.




                                                 -2-
