                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 26, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-40656
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                     JOSE LUIS SEGOVIANO-CRUZ,

                                                 Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-2375-ALL
                       --------------------

Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

     Jose Luis Segoviano-Cruz (Segoviano) appeals his conviction

and sentence for illegal reentry after deportation.          Segoviano

contends, and the Government concedes, that the district court

misapplied the Sentencing Guidelines by increasing his sentence

based on a prior Texas conviction that was not a “crime of

violence” under the Guidelines and United States v. Fierro-Reyna,

466 F.3d 324, 327-29 (5th Cir. 2006).   The Government argues that

the error was harmless but fails to show that the error did not


     *
      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this opinion should not be published and is not precedent except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.
affect the selection of the sentence.                 See Williams v. United

States, 503 U.S. 193, 203 (1992), cited in United States v. Davis,

___ F.3d ___, 2007 WL 259568, at *4 (5th Cir. Jan. 31, 2007).               The

Government failed to bear its burden of showing that the district

court would have imposed the same sentence absent the error.                See

William, 503 U.S. at 203.        We vacate the sentence and remand for

resentencing in accordance with Fierro-Reyna.

      Segoviano argues, in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), that any term of imprisonment of more than two years

exceeds the statutory maximum sentence allowed for the 8 U.S.C.

§ 1326(a) offense charged in his indictment.               He challenges the

constitutionality of § 1326(b)’s treatment of prior felony and

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury.

      Segoviano’s    constitutional          challenge    is   foreclosed    by

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

Although he 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).            Segoviano 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.   Segoviano’s conviction is affirmed.

                                        2
AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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