                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 22, 2006

                                                          Charles R. Fulbruge III
                           No. 04-41020                           Clerk
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SIMON MENDEZ-LEYVA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-358-1
                      --------------------

Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*

     Simon Mendez-Leyva (Mendez) appeals his guilty-plea

conviction and 18-month sentence for illegal reentry following

deportation.   Mendez argues that the district court improperly

enhanced his base offense level because his prior state

conviction for possession of marijuana did not constitute an

“aggravated felony” pursuant to U.S.S.G. § 2L1.2(b)(1)(C).        This

assertion is without merit.   See United States v. Caicedo-Cuero,

312 F.3d 697, 706-11 (5th Cir. 2002).




     *
       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this opinion should not be published and is not precedent except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. 04-41020
                                  -2-

     Mendez also argues that 8 U.S.C. § 1326(b) is

unconstitutional because it treats prior felony and aggravated

felony convictions as sentencing factors.   Mendez’s

constitutional challenge is foreclosed by Almendarez-Torres v.

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

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.), cert. denied, 126

S. Ct. 298 (2005).   Mendez 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.

     Mendez also contends that the district court erred in

sentencing him pursuant to the mandatory guideline 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).

     AFFIRMED.   Case remanded for the district court to decide

whether to resentence.
