                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                       March 3, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 04-41606
                              Summary Calendar



                        UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                     versus

                           BONIFACIO FELIX-SALAS,

                                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 5:04-CR-1357-ALL
                          --------------------

Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

      Bonifacio     Felix-Salas      (Felix)   appeals   his      guilty-plea

conviction and 30-month sentence for being found in the United

States following deportation. Felix argues that 8 U.S.C. § 1326(b)

is unconstitutional because it treats prior felony and aggravated

felony convictions as sentencing factors.           Felix’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

523   U.S.   224,    235   (1998).       Although   Felix   contends        that

Almendarez-Torres was incorrectly decided and that a majority of



      *
            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opinion should not be published and is not precedent except under the limited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 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.), cert. denied, 126 S. Ct. 298 (2005).                   Felix 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.

     Felix    also   contends   that      the   district     court   erred   in

sentencing him pursuant to the mandatory guidelines regime held

unconstitutional in United States v. Booker, 543 U.S. 220, 125

S. Ct. 738, 764-65 (2005).      The sentencing transcript is devoid of

evidence that the district court would have imposed the same

sentence under an advisory regime, and, therefore, the Government

has not borne its burden of establishing beyond a reasonable doubt

that the district court’s error was harmless. See United States v.

Walters, 418 F.3d 461, 464 (5th Cir. 2005).

      CONVICTION AFFIRMED; VACATED AND REMANDED FOR RESENTENCING.




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