United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 3, 2006

Charles R. Fulbruge III Clerk No. 04-40874 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN JOSE CHAPA-CONTRERAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-382-ALL --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Juan Jose Chapa-Contreras (Chapa) appeals following his

guilty-plea conviction and 37-month sentence for being found in

the United States after a previous deportation. Chapa first

argues that his sentence should be vacated because it was imposed

pursuant to a mandatory application of the Sentencing Guidelines,

in violation of United States v. Booker,

(2005).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40874 -2-

The Government concedes the error, and it further concedes

that Chapa’s objection under Blakely v. Washington,

(2004), preserved the issue for appellate review. However, the

Government contends that the error is harmless.

The Government bears the burden of showing that a Booker

error was harmless beyond a reasonable doubt. United States v.

Pineiro,

(5th Cir. 2005). The Government has

failed to show “that the district court would have imposed the

same sentence absent the error.”

. Accordingly, we

will vacate Chapa’s sentence and remand for resentencing.

For the first time on appeal, Chapa 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). Chapa

contends that his conviction should be reduced to one under

(a)(2) and the judgment reformed to reflect

conviction only under that provision.

Chapa’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Chapa 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,

, No. 04-40874 -3-

276 (5th Cir.), cert. denied,

(2005). Chapa

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. Chapa’s conviction is affirmed.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.