                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 17, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-40977
                           Summary Calendar


                     UNITED STATES OF AMERICA,

                         Plaintiff-Appellee,

                                versus

                 RAMIRO ANTONIO RODRIGUEZ-ORELLANA,

                         Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 5:04-CR-336-1
                        --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Ramiro Antonio Rodriguez-Orellana appeals the sentence imposed

following his guilty-plea conviction of illegally reentering the

United States after deportation, in violation of 8 U.S.C. § 1326.

He argues that his sentence should be vacated and remanded because

the district court sentenced him under a mandatory Sentencing

Guideline scheme held unconstitutional in United States v. Booker,

125 S. Ct. 738 (2005).    The Government argues that the error was

harmless.



     *
       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this opinion should not be published and is not precedent except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. 04-40977
                                      -2-

      Under the harmless error standard, the Government bears the

burden of proving beyond a reasonable doubt that the district court

would not have sentenced Rodriguez-Orellana differently under an

advisory     guideline   sentencing    regime.      See    United    States   v.

Walters, 418 F.3d 461, 464 (5th Cir. 2005).              The record fails to

provide clear commentary from the district court regarding whether

it   would    have   imposed    the   same   sentence     in   a    post-Booker

environment.     See id.       The Government thus has not carried its

burden of showing harmless error.            See id.     We therefore remand

Rodriguez-Orellana’s case for resentencing.

      Rodriguez-Orellana        challenges    the      constitutionality      of

8 U.S.C. § 1326(b).      His constitutional challenge is foreclosed by

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

Although Rodriguez-Orellana 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.

Mancia-Perez, 331 F.3d 464, 470 (5th Cir. 2003).                    Rodriguez-

Orellana 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.

      CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
