           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         November 9, 2007
                                     No. 06-41593
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

DARIO RAMOS-GUERRERO

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 7:06-CR-104-ALL


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Dario Ramos-Guerrero appeals his sentence for illegal reentry after
deportation in violation of 8 U.S.C. § 1326(a). Ramos-Guerrero contends that the
district court erred in applying a 16-level increase to his offense level based on
its finding that his 1999 Nebraska conviction for manslaughter was a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Government concedes that the
record is not sufficient to establish whether Ramos-Guerrero’s prior conviction
for manslaughter under Nebraska law was a crime of violence for purposes of the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41593

enhancement under § 2L1.2. In light of the Government’s concession, Ramos-
Guerrero requests that the matter be remanded for resentencing with respect
to the application of the § 2L1.2 enhancement.
      After reviewing the record, we agree with the parties that a remand is
appropriate. See United States v. Garcia, 470 F.3d 1143, 1146 (5th Cir. 2006).
Accordingly, we vacate Ramos-Guerrero’s sentence and we remand for
development of the record and resentencing. See id. Ramos-Guerrero’s motion
to expedite is granted.
      Ramos-Guerrero also challenges the constitutionality of 8 U.S.C. §
1326(b)’s treatment of prior felony and aggravated felony convictions as
sentencing factors rather than elements of the offense that must be found by a
jury. Ramos-Guerrero’s constitutional challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although he 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. 2005). Ramos-Guerrero 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;
MOTION GRANTED.




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