                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   February 2, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                           No. 05-40095
                         Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

AARON SALGADO-RANGEL, also known as
Aaron Rangel-Salgado,

                                      Defendant-Appellant.


                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1532-ALL
                       --------------------

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Aaron Salgado-Rangel (Salgado) appeals the 30-month sentence

imposed following his guilty-plea conviction of attempting to

enter the United States without permission after having been

deported, in violation of 8 U.S.C. § 1326.    Salgado argues that

his sentence is illegal under United States v. Booker, 543 U.S.

220, 125 S. Ct. 738 (2005), because it was imposed pursuant to a

mandatory application of the federal Sentencing Guidelines.

     The erroneous application of the Guidelines as mandatory is

technically a “Fanfan error.”   United States v. Martinez-Lugo,


     *
       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this opinion should not be published and is not precedent except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. 05-40095
                                 -2-

411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464

(2005); see Booker, 125 S. Ct. at 750, 768-69.     The Government

concedes that Salgado preserved his Fanfan claim for appeal and

that the issue is reviewed for harmless error.     See United States

v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).    The Government

contends that harmless error is shown by the imposition of a

“reasonable” sentence at the low end of the guidelines range.

However, the Government does not carry its arduous burden of

showing that the district court would not have sentenced Salgado

differently under an advisory guidelines system.     See United

States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir. 2005); United

States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005) (Booker

error).    We therefore we vacate the sentence and remand for

resentencing in accordance with Booker.

       Salgado also argues § 1326 is unconstitutional.   As he

concedes, this argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998), which this court must follow

“unless and until the Supreme Court itself determines to overrule

it.”    United States v. Izaguirre-Flores, 405 F.3d 270, 277-78

(5th Cir.) (quotation marks omitted), cert. denied, 126 S. Ct.

253 (2005).    The judgment of conviction is affirmed.

       CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
