                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         March 28, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 04-41151
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                         ADAN VASQUEZ-MONJARAZ,

                                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 7:04-CR-304-ALL
                        --------------------

Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

     Adan Vasquez-Monjaraz pleaded guilty to attempted reentry

after deportation in violation of 8 U.S.C. § 1326 and was sentenced

to 33 months of imprisonment and two years of supervised release.

     Vasquez-Monjaraz’s      constitutional    challenge    to    §    1326   is

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

(1998). Although Vasquez-Monjaraz 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opinion should not be published and is not precedent except under the limited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.
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).          Vasquez-Monjaraz 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, Vasquez-Monjaraz’s conviction is affirmed.

       Vasquez-Monjaraz 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, 125 S. Ct. 738 (2005).                He asserts that the error is

structural       and    is   insusceptible     of   harmless    error   analysis.

Contrary to       Vasquez-Monjaraz’s         contention,   we   have    previously

rejected this specific argument. See United States v. Walters, 418

F.3d 461, 463 (5th Cir. 2005).

       In   the    alternative,      Vasquez-Monjaraz       contends    that   the

Government cannot show that the Fanfan error was harmless.                      We

review Vasquez-Monjaraz’s preserved challenge to his sentence for

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

463.

       Vasquez-Monjaraz was sentenced at the low end of the guideline

range. The record provides no clear indication, and the Government

                                         2
has not shown, that the “district court would have imposed the same

sentence” under an advisory guidelines system, and so the error

cannot be considered harmless.        See United States v. Woods, ___

F.3d ___, No. 04-11058, 2006 WL 163475 at * 6 (5th Cir. Jan. 24,

2006).     Accordingly, Vasquez-Monjaraz’s sentence is vacated, and

his case is remanded for further proceedings consistent with this

opinion.

           CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
                                                    RESENTENCING.




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