United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-40079
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROMAN MORA-GRANADOS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
No. 5:03-CR-910-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Having pleaded guilty, Roman Mora-Granados appeals his convic-
tion and 46-month sentence for being illegally present in the Unit-
ed States following deportation in violation of 8 U.S.C. § 1326.
Mora-Granados’s constitutional challenge to § 1326 is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Al-
*
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should not be published and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.
though he contends that Almendarez-Torres was incorrectly decided
and that a majority of the Supreme Court would overrule it 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). Mora-Granados properly
concedes that his argument is foreclosed in light of Almendar-
ez-Torres and circuit precedent, but he raises it to preserve it
for further review. Accordingly, the conviction is affirmed.
Mora-Granados contends that his sentence must be vacated be-
cause he was sentenced pursuant to mandatory guidelines that were
held unconstitutional in United States v. Booker, 543 U.S. 220
(2005). Although he asserts that the error in his case is struc-
tural and not susceptible of harmless error analysis, we have re-
jected this specific argument. See United States v. Walters, 418
F.3d 461, 463 (5th Cir. 2005).
In the alternative, Mora-Granados contends that the government
cannot show that the sentencing error was harmless. We review this
preserved challenge to the sentence for harmless error under FED.
R. CRIM. P. 52(a). See Walters, 418 F.3d at 463.
The government concedes that the record does not indicate that
the district court would have imposed the same sentence under an
advisory guidelines regime. See United States v. Garza, 429 F.3d
165, 170-71 (5th Cir. 2005), cert. denied, 2006 U.S. LEXIS 1926
(U.S. Feb. 27, 2006) (No. 05-8843). Accordingly, we vacate the
sentence and remand for further proceedings consistent with this
opinion.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.