United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 26, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-10010
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROBERTO LOPEZ-MORENO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                        (3:04-CR-249-ALL)
                      --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Roberto Lopez-Moreno (Lopez) appeals his

guilty-plea conviction and sentence for illegal reentry into the

United States following removal subsequent to a conviction for an

aggravated felony. His constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 

, 235 (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, 

     *
       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this opinion should not be published and is not precedent except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.
(2000), and its progeny, we have repeatedly rejected such arguments

because Almendarez-Torres remains binding.            See United States v.

Garza-Lopez, 

, 276 (5th Cir.), cert. denied, 

(2005).

     Lopez asserts that the district court committed reversible

error under United States v. Booker, 

(2005), by

sentencing    him    pursuant   to   a    mandatory   application   of    the

Sentencing Guidelines. The government maintains that the error was

harmless.    As the government concedes, Lopez preserved this error

for review by raising an objection in the district court based on

Blakely v. Washington, 

(2004), and arguing that the

Guidelines were unconstitutional as a whole.          See United States v.

Walters, 

, 462-63 (5th Cir. 2005).           The question that

this places before us is “whether the government has met its burden

to show harmless error beyond a reasonable doubt.”         

but

cf. United States v. Mendoza-Blanco, 

, 265 n.7 (5th

Cir. 2006) (following Walters, but questioning standard of review).

     At sentencing, the district court narrowly declined to make an

upward departure and sentenced Lopez at the top of the guidelines

range.     The court did not, however, give any indication of the

sentence     it     would   impose   if     the   Guidelines   were      held

unconstitutional or advisory.             Under these circumstances, the

government has not met its burden of showing that the error was

harmless.     See United States v. Woods, 

, 257-59 (5th



                                      2
Cir. 2006). We therefore vacate Lopez’s sentence and remand to the

district court for resentencing.

     Lopez further contends that the application of the remedial

opinion in Booker to his case would violate his rights under the

Due Process Clause and the Ex Post Facto Clause were he to be

resentenced to a sentence greater than the maximum allowable

sentence as set forth in the merits opinion in Booker.         This

argument is without merit.    See United States v. Scroggins, 

, 575-76 (5th Cir. 2005).

     CONVICTION   AFFIRMED;   SENTENCE   VACATED;   REMANDED   FOR

RESENTENCING.




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