United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41607
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JOEL ESTUARDO ALVARADO-PALMA
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(USDC No. 5:04-CR-1005-1)
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Joel Estuardo Alvarado-Palma appeals his sentence following
his guilty-plea conviction for illegal reentry. Alvarado argues
that the “felony” and “aggravated felony” provisions of 8 U.S.C. §
1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Alvarado’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Alvarado contends that Almendarez-
Torres was incorrectly decided and that a majority of the Supreme
Court would overrule Almendarez-Torres in light of Apprendi, we
*
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should not be published and is not precedent except under the limited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.
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). Alvarado properly concedes that his argument is
foreclosed, but he raises it here to preserve it for further
review.
Alvarado also argues that the district court reversibly erred
under United States v. Booker, 125 S. Ct. 738 (2005), by sentencing
him pursuant to a mandatory application of the federal sentencing
guidelines. The government concedes that Alvarado has preserved
this issue for appeal. The government cannot show beyond a
reasonable doubt that the error was harmless. See United States v.
Walters, 418 F>3d 461, 463-64.
Accordingly, we REMAND to the district court to allow the
district court to resentence Alvarado if, in its discretion under
the now-advisory Guidelines, it chooses to do so.
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.
2