                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 10, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-50016
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

WILLIAM RODRIGUEZ-GONZALEZ, also know as Jose Luis Sanchez-
Flores,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 3:04-CR-1770-ALL
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     William Rodriguez-Gonzalez appeals his 27-month sentence

following his guilty-plea conviction for being unlawfully present

in the United States after having been deported, a violation of

8 U.S.C. § 1326.   The indictment did not allege that Rodriguez-

Gonzalez’s deportation was subsequent to a felony or aggravated-

felony conviction, and it did not specifically cite to any

subsection of 18 U.S.C. § 1326.   In pertinent part, the

sentencing guideline base offense level was increased twelve

     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-50016
                                  -2-

levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because Rodriguez-

Gonzalez was previously deported after a conviction for a felony

drug-trafficking offense for which the sentence imposed was 13

months or less.   Rodriguez-Gonzalez objected to this increase on

the basis of Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely v. Washington, 124 S. Ct. 2531 (2004).

     Rodriguez-Gonzalez argues that because the indictment did

not allege a prior conviction, it charged only a violation of

§ 1326(a) and under Apprendi his sentence violated due process

because it exceeded the two-year maximum punishment for the

§ 1326(a) offense charged.    This argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-47

(1998).   Although Rodriguez-Gonzalez 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, 126 S.

Ct. 298 (2005).   Rodriguez-Gonzalez 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.

     Rodriguez-Gonzalez also argues that the district court

committed reversible error when it sentenced him pursuant to the

mandatory sentencing guidelines system held unconstitutional in
                           No. 05-50016
                                -3-

United States v. Booker, 125 S. Ct. 738 (2005).    Because the

district court sentenced Rodriguez-Gonzalez under a mandatory

guidelines regime, it committed Fanfan error.     See United States

v. Valenzuela-Quevado, 407 F.3d 728, 733 (5th Cir.), cert.

denied, 126 S. Ct. 267 (2005); see also United States v. Walters,

418 F.3d 461, 463 (5th Cir. 2005)(discussing the difference

between Sixth Amendment Booker error and Fanfan error).    “[I]f

either the Sixth Amendment issue presented in Booker or the issue

presented in Fanfan is preserved in the district court by an

objection, we will ordinarily vacate the sentence and remand,

unless we can say the error is harmless under Rule 52(a) of the

Federal Rules of Criminal Procedure.”     United States v. Pineiro,

410 F.3d 282, 284-85 (5th Cir. 2005) (internal quotation marks

and citation omitted).   The Government concedes that Rodriguez-

Gonzalez’s objection on the basis of Blakely, was sufficient to

preserve his Fanfan claim and that it cannot show that the error

was harmless.   The sentencing transcript supports the

Government’s concession.   Accordingly, we VACATE Rodriguez-

Gonzalez’s sentence and REMAND to the district court for re-

sentencing.
