                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        July 19, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 05-40152
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                        CIRILO MANCILLA-MENDEZ,

                                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 7:04-CR-810-ALL
                        --------------------

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     Cirilo Mancilla-Mendez (Mancilla) appeals from his conviction

and sentence for being found in the United States after having been

deported, in violation of 8 U.S.C. § 1326.         Mancilla contends that

the district court committed reversible plain error by departing

upwards from the guideline sentencing fine range of $7,500-$75,000

to a fine of $125,000; that the district court committed reversible

plain error by sentencing him pursuant to the guideline sentencing

scheme found unconstitutional in United States v. Booker, 543 U.S.


     *
            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opinion should not be published and is not precedent except under the limited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.
220   (2005),      and    that   the   “felony”      and    “aggravated   felony”

provisions of 8 U.S.C. § 1326(b) are unconstitutional. He contends

that the waiver provision of his plea agreement does not preclude

him from raising those arguments on appeal.

      The Government does not rely on the waiver provision to bar

Mancilla’s       upward-departure      contention      or    his   constitutional

challenge to § 1326(b).          We therefore do not enforce the waiver as

to those contentions.        See United States v. Lang, 440 F.3d 212, 213

(5th Cir. 2006). Moreover, Mancilla’s contention that the district

court    erred    by     sentencing    him   under    the    formerly   mandatory

guideline sentencing regime is not barred by his plea agreement.

See United States v. Reyes-Celestino, 443 F.3d 451, 453 (5th Cir.

2006).

      The district court imposed the $125,000 fine based solely on

Mancilla’s ability to pay a fine.              A defendant’s socioeconomic

status is an impermissible factor on which to base an upward

departure.   See United States v. Painter, 375 F.3d 336, 339 (2004);

United States v. Hatchett, 923 F.2d 369, 373-75 (5th Cir. 1991).

There is a reasonable probability that the district court would

have imposed a lower fine sentence had it realized that Mancilla’s

ability to pay was an impermissible factor for a departure.                   See

United States v. Jones, 444 F.3d 430, 437 (5th Cir. 2006); United

States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).                  As to the

fine only, Mancilla’s sentence is vacated.

      Mancilla correctly concedes that he cannot satisfy the plain-

                                         2
error review standard as to his contention that the district court

erred by sentencing him under the formerly mandatory guideline

sentencing    regime.   See   United   States   v.   Valenzuela-Quevedo,

407 F.3d 728, 732-33 (5th Cir.), cert. denied, 126 S. Ct. 267

(2005); United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005). Mancilla raises his contention

to preserve it for further review.

     Mancilla’s constitutional challenge to § 1326(b) is foreclosed

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

Although Mancilla 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).     Mancilla 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.

                    AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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