United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 6, 2006

Charles R. Fulbruge III Clerk No. 04-41413 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMON ELIZONDO-GUTIERREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-949-ALL --------------------

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Ramon Elizondo-Gutierrez (Elizondo) appeals from his guilty-

plea conviction and sentence for illegal reentry. Elizondo

argues that the district court reversibly erred under United

States v. Booker,

(2005), by sentencing him

pursuant to a mandatory application of the sentencing guidelines.

The Government concedes that Elizondo has preserved this issue

for appeal. The Government, however, has not shown beyond a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41413 -2-

reasonable doubt that the error was harmless. See United States

v. Garza,

(5th Cir. 2005); United States v.

Pineiro,

(5th Cir. 2005). Accordingly,

Elizondo’s sentence is vacated, and this case is remanded for

resentencing.

Elizondo also argues that the “felony” and “aggravated

felony” provisions of

(b)(1) and (b)(2) are

unconstitutional in light of Apprendi v. New Jersey,

(2000). Elizondo’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Elizondo contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

remains binding. See United States v. Garza-Lopez,

(5th Cir.), cert. denied,

(2005). Elizondo

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; REMANDED FOR

RESENTENCING.