                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  February 6, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-40003
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ALAN ANAYA-MARTINEZ,

                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 5:04-CR-1340-ALL
                         --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Alan Anaya-Martinez (Anaya) appeals his sentence following

his guilty plea conviction for illegal reentry.    See 8 U.S.C.

§ 1326.    He challenges his sentence on three bases.     First, he

argues that his prior burglary-of-a-habitation conviction is not

a “crime of violence” supporting the 16-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(ii).    This argument is foreclosed.

United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.

2005).    Second, he argues that 8 U.S.C. § 1326(b) is


     *
       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this opinion should not be published and is not precedent except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. 05-40003
                                  -2-

unconstitutional.   This argument is also foreclosed.   United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.

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

     Finally, Anaya argues that the district court’s imposition

of his sentence pursuant to the then-mandatory guidelines was not

harmless error.   This argument has merit.   The Government has not

shown beyond a reasonable doubt that the error in imposing a

sentence pursuant to the then-mandatory guidelines was harmless.

United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005).

Accordingly, Anaya’s sentence is VACATED and this case is

REMANDED for resentencing.

     SENTENCE VACATED; REMANDED FOR RESENTENCING.
