                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT                            March 22, 2006

                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                 No. 05-40004
                               Summary Calendar


                         UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

                                DANIEL MUNOZ,

                                                        Defendant-Appellant.


              Appeal from the United States District Court
                   for the Southern District of Texas
                           (5:04-CR-1438-ALL)



Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Daniel Munoz pleaded guilty to possession with intent to

distribute in excess of 100 kilograms of marijuana, in violation of

21   U.S.C.   §§   841   and   851.     He   was   sentenced   to   262    months

imprisonment, eight years supervised release, and a $100 special

assessment.

      Munoz contends the district court committed reversible error

when it sentenced him under the mandatory Federal Sentencing


      *
       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this opinion should not be published and is not precedent except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.

                                        1
Guidelines held unconstitutional in United States v. Booker, 543

U.S. 220 (2005).          Application of the guidelines as mandatory is

deemed Fanfan error.         See United States v. Martinez-Lugo, 411 F.3d

597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005).                                When

such error occurs, the Government has the burden of proving the

error harmless          beyond    a    reasonable          doubt.       United      States   v.

Walters, 418 F.3d 461, 464 (5th Cir. 2005); see United States v.

Garza, 429 F.3d 165, 170 (5th Cir. 2005) (calling the Government’s

burden “arduous” and stating this court “will ordinarily vacate the

sentence    and    remand”       where     a    defendant         has     preserved    error)

(internal     citations      omitted).               As    the    Government       implicitly

concedes through its application of the harmless error standard,

Munoz preserved his Fanfan claim in district court.                            See Walters,

418 F.3d at 463.

      Munoz     maintains        he   is   entitled          to   resentencing        because

application of the Sentencing Guidelines as mandatory constituted

structural      error.       As       he   concedes,         however,       this    issue    is

foreclosed.       See id.         Munoz also contends the record does not

disclose that the district court’s error was harmless.                                 As the

Government      concedes,         “the     record          does     not     indicate     with

satisfactory clarity what sentence the judge would have imposed had

he   believed     the    guidelines        to       have   been     advisory       instead   of

mandatory”.       This error is not harmless; thus, we vacate the

sentence and remand for resentencing in accordance with Booker.


                                                2
     Munoz asserts for the first time on appeal that the district

court erred in ordering him to cooperate in the collection of a DNA

sample as a condition of supervised release.        This claim is

dismissed for lack of jurisdiction because it is not ripe for

review. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02

(5th Cir. 2005), petition for cert. filed, No. 05-8662 (9 Jan.

2006). Munoz concedes his contention is foreclosed in the light of

Riascos-Cuenu; he raises it to preserve it for further review.

     Munoz also asserts for the first time on appeal that § 841 is

facially unconstitutional because the penalties based on drug type

and quantity set forth in § 841(b), which have been held to

constitute sentencing factors rather than elements of the offense,

conflict with Apprendi v. New Jersey, 530 U.S. 466 (2000), and

cannot be severed from the substantive portions of the statute.

Munoz concedes this contention is foreclosed by United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532

U.S. 1045 (2001).   He raises it to preserve it for further review.

     Finally, Munoz challenges for the first time on appeal the

constitutionality of the treatment by §§ 841 and 851 of certain

prior drug convictions as sentencing factors rather than elements

of the offense that must be found by a jury in the light of

Apprendi. As Munoz concedes, this contention is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Munoz contends Almendarez-Torres was incorrectly decided and a


                                 3
majority of the current Court would overrule it in the light of

Apprendi.     We have repeatedly rejected such contentions because

Almendarez-Torres    remains   binding.    See   United   States   v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.

298 (2005).   He raises the issue to preserve it for further review.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING;

               APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION




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