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. 04-41553 Summary Calendar

UNTIED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUDOLFO ANGON-ZAMUDIO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-449-ALL --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Rudolfo Angon-Zamudio (“Angon”) pleaded guilty to one count

of illegally re-entering the United States following deportation.

Over Angon’s objection, which was based on Blakely v. Washington,

(2004), the district court enhanced Angon’s sentence

because he had previously been deported following a felony drug

trafficking conviction. Angon was sentenced to a 41-month term

of imprisonment.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41553 -2-

Angon, relying on United States v. Booker,

(2005), argues that the district court committed reversible error

by imposing sentence pursuant to a mandatory application of the

Sentencing Guidelines. The Government concedes that Angon’s

Blakely objection in the district court preserved the error.

Angon contends that the district court committed “structural

error,” that is not susceptible to harmless error analysis. As

Angon concedes, however, this court has rejected the argument

that a Booker error or the application of the then-mandatory

guidelines is a structural error. United States v. Malveaux,

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

(2005).

Angon also contends that the district court’s error was not

harmless. It is the Government’s burden to “show that the

sentencing judge would have imposed the same sentence under an

advisory sentencing scheme.” United States v. Pineiro, 410 F.3d

at 286. Our review of the record shows that the Government

correctly concedes that the error was not harmless. Accordingly,

we will vacate Angon’s sentence and remand for resentencing.

Angon 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). Angon contends that his conviction

should be reduced to one under

(a)(2) and the No. 04-41553 -3-

judgment reformed to reflect conviction only under that

provision.

Angon’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Angon 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,

(5th Cir.), cert. denied,

(2005). Angon

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.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.