UNITED STATES of America, Plaintiff-Appellee, v. Rene GARCIA DEL FIERRO, also known as Rene Garcia, Defendant-Appellant, 169 F. App'x 896

PER CURIAM: Rene Garcia del Fierro appeals his guilty-plea conviction and 55-month sentence for illegal reentry after deportation, a violation of 8 U.S.C. § 1326. Garcia’s constitutional challenge to 8 U.S.C. § 1326 is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Garcia 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 Almendarez-Torres 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). Garcia 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.

Garcia contends that his sentence must be vacated because he was sentenced pursuant to the mandatory sentencing guidelines regime that was held unconstitutional in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We review Garcia’s preserved challenge to his sentence for harmless error under Fed. R.Crim.P. 52(a). United States v. Walters, 418 F.3d 461, 463 (5th Cir.2005). The district court, in denying Garcia’s Fed. R.CrimP. 85(

a) motion, stated that “the Court has no reason to believe in retrospect that it would have found the advisory guideline range unreasonable or that it would have imposed a more lenient sentence upon Garcia” had the court considered the Guidelines to be advisory only. Based on the district court’s statements, we conclude that the error in the imposition of Garcia’s sentence was harmless beyond a reasonable doubt. See Walters, 418 F.3d at 464. Garcia further argues that the sentencing error is structural and presumptively prejudicial. As Garcia concedes, we have previously rejected this argument.

Walters, 418 F.3d at 463; United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 464,163 L.Ed.2d 352 (2005). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.