United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 13, 2006

Charles R. Fulbruge III Clerk No. 04-41583 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS MARTINEZ-COVARRUBIAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-940-ALL --------------------

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Carlos Martinez-Covarrubias (“Martinez”) appeals his guilty-

plea conviction and 41-month sentence for illegal reentry after

deportation, a violation of

. Martinez’s

constitutional challenge to

is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Martinez 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.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41583 -2-

466 (2000), 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). Martinez 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, Martinez’s conviction is AFFIRMED.

Martinez contends that his sentence must be vacated because

he was sentenced pursuant to the mandatory Sentencing Guidelines

regime that was held unconstitutional in United States v. Booker,

,

(2005). He asserts that the error

in his case is reversible because the error is structural and not

subject to harmless error analysis. As Martinez concedes, we

have previously rejected this argument. See United States v.

Walters,

(5th Cir. 2005).

In the alternative, Martinez contends that the Government

cannot show that the sentencing error was harmless. We review

Martinez’s preserved challenge to his sentence for harmless error

under FED. R. CRIM. P. 52(a). Walters,

. Martinez

was sentenced at the bottom of the applicable Sentencing

Guidelines range, and the Government has not shown that the

district court would not have sentenced Martinez differently

under an advisory Guidelines system. See United States v. Garza,

(5th Cir. 2005). Accordingly, Martinez’s

sentence is VACATED, and his case is REMANDED for further No. 04-41583 -3-

proceedings consistent with this opinion. Because we are

vacating the sentence imposed, we do not reach Martinez’s

argument that the district court erred in enhancing his offense

level by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).

See United States v. Akpan,

, 377 n.62 (5th Cir.

2005).

AFFIRMED IN PART; VACATED IN PART; REMANDED.