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. 04-41283 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSE ROBERTO MEJIA-MEDINA

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-357-1 --------------------

Before KING, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

Jose Roberto Mejia-Medina (Mejia) appeals his sentence

following his guilty plea conviction for illegal reentry. Mejia

argues that the “felony” and “aggravated felony” provisions of

(b)(1) and (b)(2) are unconstitutional in light

of Apprendi v. New Jersey,

(2000). Mejia’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States,

(1998). Although Mejia contends

that Almendarez-Torres was incorrectly decided and that a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41283 -2-

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). Mejia 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.

Mejia also argues that the district court reversibly erred

under United States v. Booker,

(2005), by sentencing

him pursuant to a mandatory application of the federal Sentencing

Guidelines. The Government concedes that Mejia has preserved

this issue for appeal. The Government, however, has not shown

beyond a reasonable doubt that the error was harmless. See

United States v. Walters,

(5th Cir. 2005).

Accordingly, Mejia’s sentence is VACATED, and this case is

REMANDED for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.