* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

February 21, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-11191

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSE LUIS RIOS-CASIO

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:04-CR-175-ALL-P

--------------------

Before KING, WIENER and DeMOSS, Circuit Judges. 

PER CURIAM:*

 Jose Luis Rios-Casio (Rios) appeals his conviction and

sentence following his plea of guilty to illegally reentering the

United States after having been deported. Rios’s constitutional

challenge to 8 U.S.C. § 1326 (a) & (b) is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). 

Although Rios 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
No. 04-11191

-2-

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, 126 S. Ct. 298 (2005). Rios

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.

 Rios argues that the increase in his offense level pursuant

to U.S.S.G. § 2L1.2(b)(1)(A)(ii) was unconstitutional under

United States v. Booker, 543 U.S. 220 (2005), because it was

based upon facts not pled in the information, proved to a jury,

or admitted by him. He also argues that the district court’s

mandatory application of the Sentencing Guidelines was error

under Booker. Because Rios preserved both arguments in the

district court, this court’s review is for harmless error. See

United States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005);

United States v. Walters, 418 F.3d 461 (5th Cir. 2005). Under

the harmless-error standard, the Government must show “that the

error did not affect the outcome of the district court

proceedings, i.e., that the district court would have imposed the

same sentence absent the error.” Pineiro, 410 F.3d at 286. 

 The Government concedes that the district court’s mandatory

application of the Guidelines in determining Rios’s sentence was

error. The Government also concedes that it cannot establish

that the district court’s error was harmless. Nothing in the

record suggests that the district court would have imposed the
No. 04-11191

-3-

same sentence under an advisory regime. Accordingly, Rios’s

sentence must be vacated, and this case must be remanded for

resentencing in light of Booker. See Pineiro, 410 F.3d at 286.

 We do not reach Rios’s contention that the district court’s

application of § 2L1.2 ran afoul of Booker. See United States v.

Apkan, 407 F.3d 360, 377 n.62 (5th Cir. 2005). Nor do we reach

Rios’s contention regarding the applicability of Booker to the

imposition of a sentence upon remand. See Amar v. Whitley, 100

F.3d 22, 23 (5th Cir. 1996) (federal court may not issue advisory

opinions). We leave to the district court’s discretion whether

it will impose the same sentence upon remand. 

AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR

RESENTENCING.