Enrique Davila-Solis appeals his conviction of, and sentence for, illegal reentry *403 after having been deported following a conviction of aggravated felony in violation of 8 U.S.C. § 1326(a) and (b). DavilaSolis contends the district court erred by applying an eight-level increase to his offense level, pursuant to U.S.S.G. § 2L1.2(b)(l)(C), because the conviction that resulted in his deportation, misdemeanor assault in violation of Tex. Penal Code Ann. 22.01(a)(1), is not a crime of violence under 18 U.S.C. § 16 and does not constitute an aggravated felony under U.S.S.G. § 2L1.2(b)(l)(C).

In United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006), this court determined that use of force is not an element of § 22.01(a)(1). The district court therefore erred in applying an enhancement based on this factor. The government concedes that based on Villegas-Hemandez, the court so erred, but the government asserts the error is harmless. Because, however, the government has failed to demonstrate beyond a reasonable doubt that the court would have imposed the same sentence absent the error, see U.S. v. Kay, 83 F.3d 98, 101 (5th Cir. 1996); U.S. v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005), the sentence is vacated, and this matter remanded for resentencing in accordance with this opinion.

Davila-Solis also challenges the constitutionality of the treatment of prior felony and aggravated felony convictions under 8 U.S.C. § 1326(b) as sentencing factors rather than elements of the offense that must be found by a jury. This challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Davila-Solis suggests that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), this court has repeatedly rejected such arguments and has declared Almendarez-Torres binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). See also Rangel-Reyes v. United States, — U.S.-, 126 S.Ct. 2873, 165 L.Ed.2d 910 (2006). Davila-Solis concedes his argument is foreclosed but raises it preserve it for further review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED for resentencing.