United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 22, 2006

Charles R. Fulbruge III Clerk No. 04-40957 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAUL AARON MENDOZA SANCHEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:03-CR-972-ALL --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Saul Aaron Mendoza Sanchez appeals from his guilty-plea

conviction for reentry of a deported alien, in violation of

. Sanchez argues that his sentence should be

vacated and remanded because the district court sentenced him

under the mandatory guidelines scheme held unconstitutional in

United States v. Booker,

(2005).

Because the district court sentenced Sanchez under a

mandatory guidelines regime, it committed error. See United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40957 -2-

States v. Valenzuela-Quevado,

(5th Cir.), cert.

denied,

(2005); see also United States v. Walters,

(5th Cir. 2005). The Government concedes that

Sanchez’s objection below preserved his claim. We cannot affirm

the erroneous sentence unless the Government shows that the error

is harmless beyond a reasonable doubt. See United States v.

Pineiro,

(5th Cir. 2005). We conclude that

the Government has not met its burden. See United States v.

Garza,

(5th Cir. 2005). We therefore VACATE

Sanchez’s sentence and REMAND for re-sentencing.

Sanchez also challenges the constitutionality of

(b). His constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Sanchez 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). Sanchez 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, Sanchez’s conviction is AFFIRMED.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.