#### UNTIED STATES of America, Plaintiff-Appellee, v. Rudolfo ANGON-ZAMUDIO, Defendant-Appellant.

No. 04-41553

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Decided Feb. 22, 2006.

James Lee Turner, Assistant U.S. Attorney, Julia Bowen Stern, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant>-Appellant.

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM: *

Rudolfo Angon-Zamudio (“Angón”) pleaded guilty to one count of illegally reentering the United States following deportation. Over Angon’s objection, which was based on *Blakely v. Washington,*542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court enhanced Angon’s sentence because he had previously been deported following a felony drug trafficking conviction. Angón was sentenced to a 41-month term of imprisonment.

Angón, relying on *United States v. Booker,*543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), argues that the district court committed reversible error by imposing sentence pursuant to a mandatory application of the Sentencing Guidelines. The Government concedes that Angon’s *Blakely*objection in the district court preserved the error.

*592Angón contends that the district court committed “structural error,” that is not susceptible to harmless error analysis. As Angon concedes, however, this court has rejected the argument that a *Booker*error or the application of the then-mandatory guidelines is a structural error. *United States v. Malveaux,*411 F.3d 558, 561 n. 9 (5th Cir.), *cert. denied,*— U.S.-, 126 S.Ct. 194, 163 L.Ed.2d 209 (2005).

Angón also contends that the district court’s error was not harmless. It is the Government’s burden to “show that the sentencing judge would have imposed the same sentence under an advisory sentencing scheme.” *United States v. Pineiro,*410 F.3d 282, 286 (5th Cir.2005). Our review of the record shows that the Government correctly concedes that the error was not harmless. Accordingly, we will vacate Angon’s sentence and remand for resentencing.

Angón challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury in light of *Apprendi v. New Jersey,*530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Angón contends that his conviction should be reduced to one under 8 U.S.C. § 1326(a)(2) and the judgment reformed to reflect conviction only under that provision.

Angon’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 Angon 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). Angón 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.

CONVICTION AFFIRMED; SENTENCE VACATED; 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.