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

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41713
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE LUIS CARRASCO-CASTRO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-1163-1
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Jose Luis Carrasco-Castro appeals the 30-month sentence

imposed following his guilty-plea conviction of illegally

reentering the United States after deportation, in violation of

8 U.S.C. § 1326.   Carrasco-Castro argues that his sentence should

be vacated and remanded because the district court sentenced him

under a mandatory Guideline scheme held unconstitutional in

United States v. Booker, 125 S. Ct. 738 (2005).   The Government

concedes that error occurred, but it notes that the error was


     *
       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this opinion should not be published and is not precedent except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. 04-41713
                                 -2-

nonconstitutional in nature and argues that the error was

harmless.

     Because Carrasco-Castro preserved his “Fanfan” challenge in

the district court by raising an objection based on Blakely v.

Washington, 124 S. Ct. 2531 (2004), we review for harmless error.

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

Government bears the burden of proving beyond a reasonable doubt

that the district court would not have sentenced Carrasco-Castro

differently under an advisory guideline sentencing regime.     See

id. at 464.

     The instant record fails to provide clear commentary from

the district court regarding whether it would have imposed the

same sentence in a post-Booker environment.    See id.   The

Government thus has not carried its burden of showing harmless

error.   See id.   We therefore remand Carrasco-Castro’s case for

resentencing.

     Carrasco-Castro challenges the constitutionality of 8 U.S.C.

§ 1326(b).    His constitutional challenge is foreclosed by

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

Although Carrasco-Castro contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), 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.),
                          No. 04-41713
                               -3-

cert. denied, 126 S. Ct. 298 (2005).   Carrasco-Castro 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.

     CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
