United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 21, 2006

Charles R. Fulbruge III Clerk No. 04-20870 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME ALVAREZ-ONTIVEROS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:03-CR-421-ALL --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Jaime Alvarez-Ontiveros appeals his conviction of unlawful

presence in the United States after deportation following an

aggravated felony conviction and his sentence. He raises three

issues in this appeal.

First, he argues that his prior burglary-of-a-habitation

conviction is not a “crime of violence” supporting the 16-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). This argument

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20870 -2-

is foreclosed. See United States v. Garcia-Mendez,

(5th Cir. 2005).

Second, Alvarez-Ontiveros argues that the “felony” and

“aggravated felony” provisions of

(b)(1) and

(b)(2) are unconstitutional in light of Apprendi v. New Jersey,

(2000). Alvarez-Ontiveros’ constitutional challenge

is foreclosed by Almendarez-Torres v. United States,

(1998). Although Alvarez-Ontiveros 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). Alvarez-Ontiveros 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.

Finally, Alvarez-Ontiveros 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 Alvarez-

Ontiveros has preserved this issue for appeal. The Government

has not shown beyond a reasonable doubt that the error was

harmless. See United States v. Walters,

, 463-64 No. 04-20870 -3-

(5th Cir. 2005). Accordingly, Alvarez-Ontiveros’ sentence is

vacated, and this case is remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.