UNITED STATES of America, Plaintiff-Appellee, v. Salvador VEGA-DIAZ, Defendant-Appellant, 137 F. App'x 720

PER CURIAM: Having pleaded guilty of illegal re-entry after deportation, Salvador Vega-Diaz appeals his forty-six-month sentence of imprisonment, which is to be followed by a three-year term of supervised release. He argues that his sentence under a mandatory application of the sentencing guidelines must be vacated in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We review this issue for harmless error, because Vega-Diaz did raise it in the district court.

Our review of the record convinces us that the district court would have imposed a lower sentence under advisory guidelines. Consequently, we vacate the sentence and remand for resentencing. United States v. Pennell, 409 F.3d 240, 246 (5th Cir.2005); United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir.2002). The decision to remand makes it unnecessary for us to address whether the enhancement of Vega-Diaz’s sentence based on prior drug trafficking convictions pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(

i) constitutes reversible error in light of United States v. Gutierrez-Ramirez, 405 F.3d 352, 353-60 (5th Cir.2005). United States v. Angeles-Mendoza, 407 F.3d 742, 754 & nn. 26-27 (5th Cir.2005). The district court will have the benefit on remand of the record supplements provided by the government relative to this issue. Finally, Vega-Diaz argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(

a) and (

b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We agree with Vega-Diaz’s concession that this issue is foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.2003). The judgment of sentence is VACATED and REMANDED for resentencing. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.