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. 04-41380 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIAN GARCIA-CONTRERAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-736-ALL --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Julian Garcia-Contreras (Garcia) appeals his conviction and

sentence for illegal reentry. Garcia challenges the

constitutionality of

(b)(1) and (2) and,

additionally, the district court’s application of the mandatory

Sentencing Guidelines.

Garcia’s constitutional challenge to § 1326(b) is foreclosed

by Almendarez-Torres v. United States,

(1998).

Although Garcia contends that Almendarez-Torres was incorrectly

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41380 -2-

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). Garcia 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.

Garcia also contends that the district court erred in

sentencing him pursuant to the mandatory Sentencing Guidelines

regime held 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 borne its burden of establishing beyond a

reasonable doubt that the district court’s error was harmless.

See United States v. Walters,

(5th Cir. 2005).

Thus, Garcia’s sentence is vacated, and the case is remanded for

further proceedings. See

.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.