
    UNITED STATES of America, Plaintiff-Appellee, v. Carlos GRIJALBA-CELIS, Defendant-Appellant.
    No. 04-41391.
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Decided Dec. 13, 2005.
    James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office Southern District of Texas, Houston, TX, for PlaintiffAppellee.
    Guillermo Ruben Garcia, Laredo, TX, for Defendant-Appellant.
    Before JOLLY, DAVIS and OWEN, Circuit Judges.
   PER CURIAM:

Carlos Grijalba-Celis (Grijalba) appeals his conviction and the sentence he received after he pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. Grijalba argues that the “felony” and “aggravated felony” provisions in 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As Grijalba concedes, this argument is foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.), cert. denied, - U.S. -, 126 S.Ct. 253, - L.Ed.2d - (2005).

Grijalba also argues, for the first time on appeal, that the district court erred by imposing a sentence pursuant to the mandatory Sentencing Guidelines system held unconstitutional in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because the district court erred in sentencing Grijalba pursuant to a mandatory Guidelines scheme, he meets the first two requirements for relief under plain error review. See United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770,123 L.Ed.2d 508 (1993); United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 267, - L.Ed.2d - (2005). The Government concedes that Grijalba can satisfy the third prong of plain error by showing that the district court felt constrained by the Sentencing Guidelines and most likely would have imposed a lower sentence under an advisory Guidelines scheme. We find nothing in the record that disturbs the Government’s representation.

Accordingly, Grij alba’s conviction under 8 U.S.C. § 1326 is AFFIRMED; his sentence, however, is VACATED, and the case is REMANDED for further proceedings. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     