                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                       May 19, 2006
                           FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 04-41281
                              Summary Calendar


                         UNITED STATES OF AMERICA
                                             Plaintiff-Appellee,

                                   versus

                          JAIME GARCIA-SANCHEZ,
                      true name Gumaro Hernandez-Mar
                                             Defendant-Appellant.


             Appeal from the United States District Court
                  For the Southern District of Texas

                               (5:04-CR-767)

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

      Jaime Garcia-Sanchez appeals his 30-month sentence for being

an alien who was unlawfully found in the United States after

deportation, in violation of 8 U.S.C. § 1326(a) and (b).                Garcia

challenges that 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 alleged in the

indictment and found by a jury, in light of Apprendi v. New Jersey,

530   U.S.   466    (2000).     Garcia’s    constitutional     challenge      is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235



      *
       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should not be published and is not precedent except under the limited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.
(1998).     Although   Garcia   contends   that   Almendarez-Torres    was

incorrectly decided and that a majority of the Supreme Court would

overrule it 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 (2000).       Garcia properly concedes that his

argument is foreclosed, but he raises it here to preserve for

further review.    Accordingly, Garcia’s conviction is affirmed.

     Garcia also contends that his sentence must be vacated and his

case remanded for resentencing because the district court erred by

sentencing him under a mandatory Sentencing Guidelines regime, in

light of United States v. Booker, 543 U.S. 220 (2005).            Garcia

preserved   this   contention   at   the   district   court;   thus,   the

government must prove beyond a reasonable doubt that the district

court would have imposed the same sentence had the Guidelines been

advisory.   See United States v. Walters, 418 F.3d 461, 463-64 (5th

Cir. 2005).   Here, the sentencing transcript is silent with regard

to whether the district court would have imposed the same sentence

had the Guidelines been advisory.        As such, the government cannot

show that the error was harmless beyond a reasonable doubt.

     Accordingly, we REMAND to the district court to allow the

district court to resentence Garcia-Sanchez if, in its discretion

under the now-advisory Guidelines, it chooses to do so.




                                     2
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.




                          3
