#### UNITED STATES of America, Plaintiff-Appellee, v. Angel ARELLANO-RAMIREZ, Defendant-Appellant.

No. 04-41444.

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Decided Feb. 27, 2006.

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

Marjorie A Meyers, Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Federal Public Defender’s Office Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM: *

Angel Arellano-Ramirez appeals his guilty-plea conviction and sentence for being unlawfully present in the United States following deportation. He argues that the district court committed reversible error under *United States v. Booker,*543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by sentencing him pursuant to a mandatory application of the guidelines. As the Government concedes, Arellano preserved this issue for review by raising an objection based upon *Blakely v. Washington,*
      *365542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in the district court. *See United States v. Walters,*418 F.3d 461, 462-63 (5th Cir.2005). Accordingly, the question before us “is whether the government has met its burden to show harmless error beyond a reasonable doubt.” *Id.*at 464.

The district court erred by sentencing Arellano under the mistaken belief that the guidelines were mandatory. *See United States v. Valenzuela-Quevedo,*407 F.3d 728, 732 (5th Cir.), *cert. denied,*— U.S. -, 126 S.Ct. 267, 163 L.Ed.2d 240 (2005). While the district court denied Arellano’s request for a downward departure, it sentenced him at the low end of the guidelines range and did not state what sentence it would impose if the guidelines were held unconstitutional. In these circumstances, the Government has not met its “arduous burden” of showing that the error was harmless. *United States v. Garza,*429 F.3d 165, 170 (5th Cir.2005) (internal quotation marks omitted). Accordingly, we vacate Arellano’s sentence and remand to the district court for resentencing.

Arellano’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 Arellano 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). Arellano 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.