                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 16, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40107
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ARTURO CANTU-COVARRUBIAS,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1813-ALL
                       --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Arturo Cantu-Covarrubias (“Cantu”) appeals his sentence

following his guilty plea conviction for illegal reentry.         First,

he argues that his prior burglary-of-a-habitation conviction is

not a “crime of violence” supporting the 16-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(A)(ii).   This argument is

foreclosed.    See United States v. Garcia-Mendez, 420 F.3d 454,

456-57 (5th Cir. 2005).




     *
       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this opinion should not be published and is not precedent except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. 05-40107
                                 -2-

     Second, Cantu argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).    Cantu’s constitutional challenge is foreclosed by

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

Although Cantu contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres 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 (2005).    Cantu

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.

     Finally, Cantu argues that the district court reversibly

erred under United States v. Booker, 125 S. Ct. 738 (2005), by

sentencing him pursuant to a mandatory application of the

sentencing guidelines.    The Government concedes that Cantu has

preserved this issue for appeal.    The Government, however, has

not shown beyond a reasonable doubt that the error was harmless.

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

2005).    Accordingly, Cantu’s sentence is VACATED, and this case

is REMANDED for resentencing.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
