                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 13, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-41186
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FERNANDO GARCIA-GARCIA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:06-CR-221-ALL
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Fernando Garcia-Garcia (Garcia) appeals the 36-month

sentence he received following his guilty-plea conviction for

illegal reentry after deportation following a conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326.     Garcia

argues that the provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional, but this argument is foreclosed by Almendarez-

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

Garcia contends that a majority of the Supreme Court would

overrule Almendarez-Torres in light of Apprendi v. New Jersey,

     *
       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this opinion should not be published and is not precedent except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. 06-41186
                                -2-

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).   Garcia properly concedes

that his argument is foreclosed in light of Almendarez-Torres and

circuit precedent, but raises it to preserve it for further

review.

     Garcia argues that the district court erred by

characterizing his prior state felony convictions for possession

of a controlled substance as “aggravated felonies” for purposes

of U.S.S.G. § 2L1.2(b)(1)(C), thereby enhancing his sentence by

eight-levels.   Garcia has filed an unopposed motion to remand his

case for resentencing in light of the Supreme Court’s opinion in

Lopez v. Gonzales, 127 S. Ct. 625, 633 (2006).   The motion is

GRANTED.   See United States v. Estrada-Mendoza, 475 F.3d 258, 261

(5th Cir. 2007).   Garcia’s conviction is AFFIRMED, the sentence

is VACATED and the case is REMANDED for resentencing.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
