United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41084
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
MARIO ALBERTO LOPEZ-MARTINEZ,
True Name, Mario Alejandro Lopez-Martinez,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-424-1
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Mario Alberto Lopez-Martinez (Lopez) appeals from his conviction of illegal reentry
following deportation pursuant to 8 U.S.C. § 1346.
Lopez challenges the constitutionality o f 8 U.S.C.§ 1326(b). His constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Lopez
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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, 530 U.S. 466 (2000), we have
repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Lopez
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.
Lopez contends that the district court erred by sentencing him under the then-mandatory
guideline sentencing scheme that was rendered advisory in United States v. Booker, 125 S. Ct. 738
(2005). He argues that his sentence must be vacated and his case remanded for resentencing unless
the Government can show beyond a reasonable doubt that the district court’s error was harmless.
The Government agrees that the harmless-error standard applies, and it waives any argument that the
error at Lopez’s sentencing was harmless. The Government “does not oppose a remand for
resentencing.” Because the Government waives any harmless-error argument, Lopez’s sentence is
vacated, and the case is remanded for resentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.