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

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40016
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LEONARDO DELGADO-CASTILLO, also known as Juan Ruiz-Castillo,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1520-ALL
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Leonardo Delgado-Castillo appeals his conviction and

sentence for unlawful presence in the United States after

deportation following an aggravated felony conviction.      He raises

three issues in this appeal.

     First, Delgado-Castillo argues that his sentence is

unconstitutional under United States v. Booker, 543 U.S. 220

(2005), because it was imposed pursuant to a mandatory

application of the United States Sentencing Guidelines.       He thus


     *
       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this opinion should not be published and is not precedent except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. 05-40016
                                  -2-

alleges a “Fanfan” error.     See United States v. Walters, 418 F.3d

461, 463 (5th Cir. 2005).    Fanfan error is not a structural

error.    Id.   However, the Government concedes that the Fanfan

error was preserved, so we review for harmless error.     See id.

       A sentence at the top of the guideline range alone is

insufficient to establish that the Fanfan error was harmless.

See United States v. Woods, 440 F.3d 255, 258-59 (5th Cir. 2006).

The record fails to demonstrate beyond a reasonable doubt that

the district court would have imposed the same sentence under the

post-Booker advisory sentencing regime.     See Walters, 418 F.3d at

464.    We therefore vacate Delgado-Castillo’s sentence and remand

for resentencing in accordance with Booker.     See id. at 466.

       Second, Delgado-Castillo argues that his base offense level

was erroneously enhanced eight levels pursuant to U.S.S.G.

§ 2L1.2(b)(1)(C).    He contends that the enhancement was improper

because his state felony conviction for simple possession of

cocaine was a misdemeanor under federal law, not an “aggravated

felony.”    Delgado-Castillo acknowledges that this court’s

decisions in United States v. Rivera, 265 F.3d 310, 312-13 (5th

Cir. 2001), and United States v. Hinojosa-Lopez, 130 F.3d 691,

693-94 (5th Cir. 1997), mandate the result reached by the

district court; however, he contends that these holdings are

contrary to the Supreme Court’s decision in Jerome v. United

States, 318 U.S. 101, 104-07 (1943).    Having preceded

Hinojosa-Lopez, Jerome is not “an intervening Supreme Court case
                            No. 05-40016
                                 -3-

explicitly or implicitly overruling that prior precedent.”       See

United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999).

Delgado-Castillo has not shown that the district court erred by

classifying his possession conviction as an aggravated felony for

purposes of the eight-level enhancement under § 2L1.2(b)(1)(C).

     Third, Delgado-Castillo argues that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and

(b)(2) are unconstitutional in light of Apprendi v. New Jersey,

530 U.S. 466 (2000).    Delgado-Castillo’s constitutional challenge

is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998).    Although Delgado-Castillo 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).    Delgado-Castillo 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; REMANDED FOR

RESENTENCING.
