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

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41400
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LEONEL AVILA-CARBAJAL,

                                    Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 5:03-CR-1601-ALL
                         --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Leonel Avila-Carbajal appeals from his guilty-plea

conviction and sentence for attempted reentry after deportation.

Avila-Carbajal argues that the district court erred by sentencing

him under the mandatory Sentencing Guidelines held

unconstitutional in United States v. Booker, 543 U.S. 220 (2005).

We agree.   However, Avila-Carbajal’s argument that such error was

structural is foreclosed.   See United States v. Martinez-Lugo,

411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464


     *
       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this opinion should not be published and is not precedent except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. 04-41400
                                -2-

(2005).   Because the Government has failed to show that the error

was harmless beyond a reasonable doubt, Avila-Carbajal’s sentence

must be vacated and the case remanded for resentencing.   See

United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005);

United States v. Pineiro, 410 F.3d 282, 287 (5th Cir. 2005).

     Avila-Carbajal’s constitutional challenge is foreclosed by

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

Although Avila-Carbajal 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).   Avila-Carbajal 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.

     For the foregoing reasons, we AFFIRM Avila-Carbajal’s

conviction, VACATE Avila-Carbajal’s sentence, and REMAND for

resentencing in accordance with this opinion.
