United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 8, 2006

Charles R. Fulbruge III Clerk No. 04-11375 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ANTONIO MARTINEZ-ESQUIVEL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:04-CR-140-ALL-L --------------------

Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

Juan Antonio Martinez-Esquivel appeals his conviction and

sentence for illegal reentry after a previous deportation.

Martinez-Esquivel first challenges the constitutionality of

(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 in light of Apprendi v.

New Jersey,

(2000). Martinez-Esquivel’s

constitutional challenge to § 1326(b) is foreclosed by

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(1998).

Although Martinez-Esquivel 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). Martinez-Esquivel

properly concedes that Almendarez-Torres has not been overruled.

Martinez-Esquivel argues that his sentence is illegal under

United States v. Booker,

(2005), because it was

imposed pursuant to a mandatory application of the Sentencing

Guidelines. In the district court, Martinez-Esquivel objected to

the sentence under Blakely v. Washington,

(2004). He

now raises the type of error raised by a second respondent in

Booker, Ducan Fanfan, i.e., that imposition of a sentence pursuant

to a mandatory Guidelines regime violated his rights. See Booker,

. The Government avers that Martinez-

Esquivel has preserved a Fanfan-type error for appeal and that it,

the Government, cannot show that the district court would not have

sentenced Martinez-Esquivel differently under an advisory

Guidelines regime.

Because the Government admits that it cannot show that the

district court would not have sentenced Martinez-Esquivel

differently under an advisory Guidelines system, see United States

v. Akpan,

(5th Cir. 2005), we vacate the sentence

2 and remand for resentencing in accordance with Booker. Martinez-

Esquivel’s argument that the Due Process and Ex Post Facto Clauses

bar the application of Justice Breyer’s remedy opinion in Booker is

foreclosed by our prior caselaw. See United States v. Scroggins,

(5th Cir. 2005).

AFFIRMED IN PART; VACATED IN PART AND REMANDED.

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