UNITED STATES of America, Plaintiff-Appellee, v. Ivan ALVARADO, also known as Erik Fuentes-Garcia, Defendant-Appellant, 170 F. App'x 880

PER CURIAM: Ivan Alvarado 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Alvarado’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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 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). Alvarado 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.

Alvarado also argues that the district court erred under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by sentencing him under a mandatory application of the federal sentencing guidelines. The government concedes that Alvarado preserved this issue for appeal. However, the government cannot show that the error was harmless. See United States v. Walters, 418 F.3d 461, 463-64 (5th Cir.2005). 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. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.