UNITED STATES of America, Plaintiff-Appellee, v. Mario Alberto LOPEZ-MARTINEZ, True Name, Mario Alejandro Lopez-Martinez, Defendant-Appellant, 166 F. App'x 123

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 AlmendarezTorres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Lopez 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that AlmendarezTorres remains 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). 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, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.