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. 05-40144 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ERNESTO ESCOVAL-ESPINOZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1373-1 --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Ernesto Escoval-Espinoza appeals from his guilty-plea

conviction for reentry of a deported alien, in violation of

. Escoval-Espinoza argues that his sentence should

be vacated and remanded because the district court sentenced him

under the mandatory guidelines scheme held unconstitutional in

United States v. Booker,

(2005). He also argues

that the district court erroneously determined that a prior state

conviction was for a crime of violence.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40144 -2-

Because the district court sentenced Escoval-Espinoza under

a mandatory guidelines regime, it committed error. See United

States v. Valenzuela-Quevado,

(5th Cir.), cert.

denied,

(2005); see also United States v. Walters,

(5th Cir. 2005). The Government concedes that

Escoval-Espinoza’s objection below preserved his claim. We

cannot affirm the erroneous sentence unless the Government shows

that the error is harmless beyond a reasonable doubt. See United

States v. Pineiro,

(5th Cir. 2005). We

conclude that the Government has not met its burden. See United

States v. Garza,

(5th Cir. 2005). We therefore

VACATE Escoval-Espinoza’s sentence and REMAND for re-sentencing.

Accordingly, we need not address Escoval-Espinoza’s other claimed

sentencing error. See United States v. Akpan,

, 377

n.62 (5th Cir. 2005).

Escoval-Espinoza also challenges the constitutionality of

(b). His constitutional challenge is foreclosed by

Almendarez-Torres v. United States,

(1998).

Although Escoval-Espinoza 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). Escoval-Espinoza properly No. 05-40144 -3-

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. Accordingly, Escoval-Espinoza’s

conviction is AFFIRMED.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.