United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 16, 2006

Charles R. Fulbruge III Clerk No. 04-41405 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CESAR VARGAS-RAMIREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (5:04-CR-793-ALL) --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Cesar Vargas-Ramirez (Vargas) appeals his

guilty-plea conviction and sentence for illegal re-entry of a

deported alien. Vargas was sentenced to 50 months of imprisonment

and three years of supervised release. He contends that his

sentence is illegal under United States v. Booker,

(2005), because it was imposed pursuant to a mandatory application

of the Sentencing Guidelines. As the government concedes, Vargas

preserved this issue in the district court by objecting to his

sentence pursuant to Blakely v. Washington,

(2004).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Accordingly, our review is for harmless error. See United States

v. Mares,

, 520 n.9 (5th Cir.), cert. denied,

(2005).

The government has not carried its burden to show beyond a

reasonable doubt that the district court’s error did not affect

Vargas’s sentence. See United States v. Garza,

(5th Cir. 2005). Therefore, we vacate the sentence and remand for

resentencing in accordance with Booker. See Garza,

. In light of Vargas’s resentencing, we do not address his

additional claim of sentencing error.

Vargas also asserts that the “felony” and “aggravated felony”

provisions of

(b)(1) and (2) are unconstitutional.

This constitutional challenge is foreclosed by Almendarez-Torres v.

United States,

(1998). Although Vargas 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). Vargas candidly

concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, raising it here solely to

preserve it for further review. The judgment of conviction is

affirmed.

2 CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR

RESENTENCING.

3