* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

February 1, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41691

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EFRAIN GOMEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-1044-ALL

Before KING, GARWOOD and SMITH, Circuit Judges.

PER CURIAM: *

Efrain Gomez appeals the sentence imposed following this

guilty-plea conviction for illegal entry, in violation of 8 U.S.C.

§ 1326. He argues first that the district court erred when, over

his proper objection, it classified his prior state conviction as

a drug-trafficking off ense that warranted a 12-level enhancement

under U.S.S.G. § 2L1.2(b)(1)(B).2

As the Government concedes, Gomez both preserved this

contention below and is correct in his assertion that the district

court erred in applying t his guidelines enhancement because

California Health & Safety Code § 11352(a), the state statute under

which Gomez was convicted, is worded so that some, but not all,

violations of the statute constitut e a drug-trafficking offense

consistent with the guidelines definition, and the documents

introduced by the Government to support the enhancement indicated

only that Gomez had been convicted of violating that state statute.

See United States v. Garza-Lopez

, 410 F.3d 268, 273-74 (5th Cir.),

cert. d enied , 126 S.Ct. 298 (2005); U nited States v. GutierrezRamirez , 405 F.3d 352, 352-60 (5th Cir.), cert. denied , 126 S.Ct.

217 (2005 ). We reject the Government’s contention that this

properly preserved error was harmless. The Government has not

carried its burden in this respect because the record does not

suffici ently indicate that the district court would have imposed

the same sentence absent the guidelines error. See United States

v. Ahmed

, 324 F.3d 368, 374 (5th Cir. 2003); U nited States v.

Waskom , 179 F.3d 303, 312 (5th Cir. 1999).

Gomez argues that, in light of United States v. Booker

, 125

S.Ct. 738 (2005), the district court erred in sentencing him under

a mandatory guidelines scheme. The Government concedes the error

and i ts proper preservation below, but contends it was harmless.

However, the Government has not carried its burden in this respect.3

Finally, Gomez 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 A pprendi v. New

Jersey

, 530 U.S. 466 (2000). This constitutional challenge is

foreclosed by Almendarez-Torres v. United States

, 523 U.S. 224, 235

(1998). Although Gomez contends that A lmendarez-Torres w a s

incorrectly decided and that a majority of the Supreme Court would

overrule Almendariz-Torres in light of Apprendi

, we have repeatedly

rejected such arguments on the basis that Almendariz-Torres remains

binding. See Garza-Lopez , 410 F.3d at 276.

We therefore AFFIRM Gom ez’s conviction, but we VACATE his

sentence and REMAND for resentencing consistent with this opinion

and the Supreme Court’s opinion in Booker

.