                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                February 23, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-41598
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ELIAS GOMEZ-ROMERO,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-821-ALL
                      --------------------

Before KING, GARWOOD, and SMITH, Circuit Judges.

PER CURIAM:*

     Having pleaded guilty, Elias Gomez-Romero (Gomez) appeals

his conviction and 63-month sentence for being illegally present

in the United States following deportation in violation of 8

U.S.C. § 1326.

     Gomez’s constitutional challenge to 8 U.S.C. § 1326 is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).    Although Gomez contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court


     *
       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this opinion should not be published and is not precedent except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. 04-41598
                                 -2-

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).    Gomez 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.   Accordingly, Gomez’s conviction is affirmed.

     Gomez contends that his sentence must be vacated because he

was sentenced pursuant to mandatory Sentencing Guidelines that

were held unconstitutional in United States v. Booker, 543 U.S.

220 (2005).   Although Gomez asserts that the error in his case is

structural and not susceptible of harmless error analysis, we

have previously rejected this specific argument.    See United

States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).

     In the alternative, Gomez contends that the Government

cannot show that the sentencing error was harmless.    We review

Gomez’s preserved challenge to his sentence for harmless error

under FED. R. CRIM. P. 52(a).   See Walters, 418 F.3d at 463.

     The district court sentenced Gomez to the lowest sentence in

the relevant guidelines sentencing range.    The record does not

indicate, and the Government has not shown, that the district

court would have imposed the same sentence under an advisory

guidelines regime.   See United States v. Garza, 429 F.3d 165,

170-71 (5th Cir. 2005).   Accordingly, we vacate Gomez’s sentence
                          No. 04-41598
                               -3-

and remand the case for further proceedings consistent with this

opinion.

     CONVICTION AFFIRMED IN PART; SENTENCE VACATED; REMANDED.
