United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 04-41567 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ALFREDO ENRIQUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1167-ALL --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Juan Alfredo Enriquez appeals his conviction and sentence

for illegal reentry. Enriquez challenges the constitutionality

of

(b)(1) and (2) and, additionally, the district

court’s application of the mandatory Sentencing Guidelines.

Enriquez’s constitutional challenge to § 1326(b) is

foreclosed by Almendarez-Torres v. United States,

(1998). Although Enriquez contends that Almendarez-Torres

was incorrectly decided and that a majority of the Supreme Court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41567 -2-

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). Enriquez 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.

Enriquez 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, Enriquez’s sentence is vacated and the case is remanded for

further proceedings. See

.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.