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. 04-40870 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO JAVIER ARAGUZ-BRIONES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-201-ALL --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Francisco Javier Araguz-Briones appeals his guilty-plea

conviction and 75-month sentence for illegal reentry after

deportation, a violation of

Araguz’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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 We reject the government’s contention that the waiver of appeal provision in Araguz’s plea agreement bars this appeal. At rearraignment, the magistrate judge, in the context of addressing the waiver of appeal provision, specifically advised Araguz that he “could still appeal from an illegal sentence.” Under such circumstances, the appeal waiver was not knowing and voluntary. See, e.g., United States v. Cuellar,

,

(5th Cir. 2005) (unpublished); United States v. Mendez,

,

(5th Cir. 2005) No. 04-40870 -2-

constitutional challenge to

is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Araguz 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,

(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). Araguz 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. Thus, we AFFIRM Araguz’s conviction.

Araguz contends that his sentence must be vacated because he

was sentenced pursuant to the mandatory sentencing guidelines

regime that was held to be unconstitutional in United States v.

Booker,

(2005). The sentencing transcript is devoid

of evidence that the district court would have imposed the same

sentence under an advisory regime, and, therefore, the Government

has not met its burden of establishing beyond a reasonable doubt

that the district court’s error was harmless. See United States

v. Walters,

(5th Cir. 2005). Accordingly,

Araguz’s sentence is VACATED, and the case is REMANDED for

further proceedings. See

.

(unpublished).