                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                              August 16, 2007
                   FOR THE FIFTH CIRCUIT
                                                                      Charles R. Fulbruge III
                                                                              Clerk
                                 No. 06-40229
                               Summary Calendar


UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

JUAN DOMINGUEZ-HERNANDEZ

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 1:05-CR-731-ALL


Before WIENER, GARZA, and BENAVIDES, Circuit Judges,
PER CURIAM:*
      Juan Dominguez-Hernandez appeals from his 37-month sentence resulting
from his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326.
      Dominguez-Hernandez argues that the district court misapplied the
Sentencing Guidelines by characterizing his state felony conviction for
possession of a controlled substance as an “aggravated felony” for purposes of
U.S.S.G. § 2L1.2(b)(1). Given the Supreme Court's recent decision in Lopez v.
Gonzales, 127 S. Ct. 625 (2006), Dominguez-Hernandez is correct. See 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should not be published and is not precedent except under the limited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. 06-40229

States v. Estrada-Mendoza, 475 F.3d 258, 260-61 (5th Cir.), cert. denied, 127 S.
Ct. 1845 (2007).    Dominguez-Hernandez’s sentence is vacated as to the
§ 2L1.2(b)(1) adjustment, and the case is remanded for resentencing.
      Dominguez-Hernandez's constitutional challenge to § 1326(b) is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although
Dominguez-Hernandez 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. 2005). Dominguez-
Hernandez 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.
      Dominguez-Hernandez's motion to summarily affirm in part and to vacate
in part and remand for resentencing is denied as moot.
      AFFIRMED IN PART; VACATED AND REMANDED IN PART FOR
RESENTENCING; MOTION DENIED AS MOOT.




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