                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 9, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41561
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

PEDRO VEGA-DOMINGUEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-303-ALL
                      --------------------

Before REAVLEY, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

     Pedro Vega-Dominguez appeals his guilty-plea conviction and

his 72-month sentence for illegal reentry into the United States.

Vega-Dominguez preserved his challenge to the application of

mandatory Sentencing Guidelines for appellate review by objecting

in the district court that his sentence violated Blakely v.

Washington, 542 U.S. 296 (2004).   United States v.

Rodriguez-Mesa, 443 F.3d 397, 404 (5th Cir. 2006).




     *
       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this opinion should not be published and is not precedent except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. 04-41561
                                 -2-

     Vega-Dominguez’s constitutional challenge to 8 U.S.C. § 1326

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

224, 235 (1998).    Although Vega-Dominguez 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), and its progeny, 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).

     Vega-Dominguez argues that the district court committed

reversible error under United States v. Booker, 543 U.S. 220

(2005), by sentencing him pursuant to a mandatory application of

the Sentencing Guidelines, and that his sentence pursuant to

mandatory Guidelines is a presumptively prejudicial structural

error.    Vega-Dominguez concedes that his claim of structural

error is foreclosed by circuit precedent.    See United States v.

Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.), cert. denied, 126 S.

Ct. 194 (2005).

     The district court erred when it sentenced Vega-Dominguez

under the mistaken belief that the Sentencing Guidelines were

mandatory.    United States v. Valenzuela-Quevedo, 407 F.3d 728,

732 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005).    We agree

with the Government’s concession that it cannot show that Vega-

Dominguez’s 72-month sentence was harmless beyond a reasonable
                           No. 04-41561
                                -3-

doubt.   See United States v. Walters, 418 F.3d 461, 464 (5th Cir.

2005).   The district court sentenced Vega-Dominguez near the

bottom of the applicable range under the Sentencing Guidelines,

and it gave no indication whether it would have imposed a

different sentence under advisory guidelines.   Accordingly, we

vacate Vega-Dominguez’s sentence and remand for resentencing.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.
